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Non-School Use of Public School Propperty: Its Legal Basis

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F O R D H A M U N IV E R SIT Y
G R A D U A T E SCHOOL
.......................... 19....4X.
This dissertation prepared under my direction by
.............................. E.le a n o r ...Mar ie ...A r r in g t o n ..............................................
entitled
Nqn-SQhoolUseof^
has been accepted in partial fulfilment of the requirements for the
Degree of..............D octor...of...^ ilq so p h K ............................................
(Faculty A dviser)
r
n
HOK-SCHOOL USE OP PUBLIC SCHOOL PROPERTY
ITS LEGAL BASIS
A th e s is
Presented to
the Faculty o f the School o f Education
Fordham U niversity
In P a r tia l F u lfillm en t
o f the Requirements for th e Degree
Doctor o f Philosophy
by
Eleanor Marie Harrington
February 1941
L-
J
ProQuest Number: 13846674
All rights reserved
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uest
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n
PAGE n
TABLE OF COMTEHTS
Chapter i
im m w cT io M . . . * . ..............................
i
The Problem and i t s Scope
Review o f Related Studied
2
. . . . . . . .
4
Sources o f Data . . . . .
6
Heed for S t u d y ........................................
14
L im itations •
ID
Chapter IJ COMMERCIAL USE OF THE SCHOOLS...........................
21
A d v e r tis in g ..............................................................
24
Use o f Radio
................................
33
S a l e s .................................. ....
. .
33
E n tertain m en t......................................
••
41
School C afeterias
. .
47
T h rift Banks . . . . . . . . . . . . . . .
61
School Stables and Hitching Posts
61
. . . .
Dental* Health and Orthopedic C lin ics
• •
62
Print S h o p s .........................
••
64
Manual Training P rojects ...................................
66
School Stores . . . . . . . . . . . . .
69
.
School O r c h e str a s.....................
78
Chapter I I I COMMERCIAL USE OF SCHOOL PROPERTY . . . . .
U n iversity Leases •
82
........................................
83
O il and Gas L e a s e s .....................
83
Sewers* Tunnels* Paving
88
. . . . . . . . .
Teachers* Homes and Student Dormitories
•
89
r
Chapter I?
PAGE
Renting Rooms for School Purposes . . . . . .
96
Renting the School Property . . . . . . . . .
102
n
RELIGIOUS OH SECTARIAN USE OF THIS SCHOOLS AID
SCHOOL PROPERTY..........................................
166
B ib le Heading in the Schools . . . . . . . .
167
Wearing a R eligiou s Garb w hile teaching
• •
182
•
189
....................
189
D isplay o f th e Ten Commandments . . . .
Sectarian Books . . . . . . . . .
*
M ilita ry D r ill and Physical Training . . . .
193
Dancing - Vaccination . . . . . . . . . .
.
196
R eligiou s Instru ction . . . . . . . . . .
.
197
M iscellaneous Student Usee • • • • • • • • •
205
Lectures on Atheism
211
. . . . . . . . . . . .
Church F e stiv a ls and Y.M .0 .A . Meetings . . •
211
Divine Worship and Sunday Schools • • • •
212
R elig io u s Meetings
.
.............................
214
Ren-Sectarian O rganizations . . . . . . .
»
232
Chapter V COMMUNITY USE OF THE SCHOOL PROPERTY............................
241
S o cia l C ivic and Recreational Purposes • • •
243
Farmers*« Grange and Lodge Meetings . • •
268
•
Red Cross Meetings and Improvement A ssociation s 271
Veterans* A ssociation s
L
. . . . . . . . . .
272
Community and C ivic Centres ..............................
275
Public M eetings, L ectures, and Purposes . .
287
Entertainments . . . . . . . . . . . . .
295
•
J
r
PAGE
A th le tic s end D a n c in g ..................................... . . . .
297
Pairs and Carnivals
. . . . . . . . . . . . .
300
. . . . . . . . . . . . . . .
302
S tatutory S ilen ce
Chapter VI
EDUCATIONAL USE OF THE SCHOOLS AND SCHOOL PROPERTY
322
Semi-School and Semi-Educational O rganisations
322
School E lection s . . . . . . . . . .
. . . . . .
351
...............................................
355
Annual Meetings . . .
S p ecial E lection s . . . . . . . . . . . . . . .
357
School O ffices • • • • • • • • • • • . » . • •
356
U n iversity and Extension Courses . . . . . . .
359
Examinations and Teachers1 I n s titu te s . . .
•
361
Instru ction
•
363
S t u d y ...................................................................
•
368
Poultry Shows •
•
369
School E xh ib its
. . . .
. . . . . . . . . . .
370
S e le c t or Normal Schools • • • • • • • • • « •
370
Private School Teaching . . . . . . . . . .
.
Contracts w ith Private Schools • * . • • • * •
A gricultural Meetings . . . . . . . . . . .
L
371
376
.
378
L iterary, S c ie n t if ic and Mechanical S o c ie tie s
379
A r t is t ic or Moral Purposes . . . . . . . . . .
381
Concerts and Singing . . . . . . . . . . . . .
382
Lectures
386
Educational Meetings . . . . . .
n
..........................
387
J
PAGE "1
Chapter VII
POLITICAL USE OF THE SCHOOLS MB SCHOOL PROPSBTY
40S
Via the Student Body as a Medium . . . . . . .
409
P o llin g Places . . . . . . . . . . . . . . . .
417
P o lit ic a l Meetings . . . . . . . . . . . . . .
424
D iscussion o f Questions o f P o lit ic a l In te r e st
435
Propaganda and Controversy . . . . . . . . . .
442
Hearing Candidates for Public O ffice • • • . .
448
Non-Partisan Purposes .
. . . .
480
.
484
•
484
Town Meetings
................. ....
.................................
Statutory S ilen ce . . . . . . . . . . . . .
Chapter VIII PUBLIC LIBRARY AND MISCELLANEOUS PURPOSES * . .
460
The D is tr ic t Library . . . . . . . . . . . . .
461
Proper Purposes
Chapter IX
..................................
469
Lawful Purposes . . . . . . . . . . . . . . .
472
Purposes Approved by the School Board • * • .
473
General Care and C u sto d y....................
476
CONCLUSIONS . . .
BIBLIOGRAPHY
. . . . .
* ....................
478
. . . . . .
APPENDIX Supplementary Tables . . . . . . . . .
L
.
499
521
J
r
n
LIST OF TABLES
Page
X.
XX.
III.
IV.
V.
VI.
V II.
L
School Board Regulations on Commercial U s e s .................
S tatu tes on the C afeteria . . . . . . . . .
44
.......................
52
Legal Basis for B ib le R ea d in g ......................
180
S tatu tes and By-Laws on Semi-Educational tjees . . . . .
346
S tatu tes on P o lit ic a l Usee •
................... ....
•
458
Population D istrib u tion of School D is tr ic ts .......................
522
D istrib u tion o f Court Cases
523
J
CHAPTER
|
1
INTRODUCTION
*fA ll modern plans for a l l types o f school b u ild in gs a t once
suggest larger community u sefu ln ess fo r them, than the mere seat work
In stru ctio n o f children fo r a few hours a day*”*
This statement would
n ot, in i t s essen ce, have been s ta r tlin g to th e early s e t t le r s of t h is
country*
When l i f e was simple and people were drawn together by common
in t e r e s t s , the school was the natural centre o f community lif e *
However,
the rapid growth o f population has been accompanied by a growth in the
scop© o f educational a c t i v it i e s and correspondingly the value o f public
school property has inoreased*
In 1930 th ese school p ro p erties, accord­
ing to estim ate o f the United S ta te s Bureau o f Education,were valued
a t s ix b illio n dollars*
The modern a ttitu d e toward a larger community
u se fu ln ess o f the sohool i s perhaps b e st expressed in the words of
Hosio*
”The elementary school o f today fa ces o b lig a tio n s undreamed of
in the days when i t took on the form o f organisation that i t has so
long maintained*
These r e s p o n s ib ilitie s can only be accomplished by a
considerable reform in the conduct o f school a f f a ir s , e s p e c ia lly in
the handling o f public sohool property and in th e conceiving o f the alms
o f educators by le g is la t o r s and j u r is t s * ”
What use should be made o f th is property?
The varying opinions
•which are expressed accomplish l i t t l e in the so lu tio n of t h is problem*
Judge Monro© of Louisiana s ta te s ”A sohool buildin g stands for the so le
X*
Ellwood P* Cubberley «* Public School Adm inistration, p*567
2*
James Hosic - Cooperative Group Plan, Preface
2
'"purpose of tra in in g young people in t e lle c t u a lly , m orally, and s o c ia lly 71
I t should he the students* temple o f r ig h t conduct and pure eth ics#
Whatever i s morbid or unwholesome should be kept out o f the schoolhouse#"*
On the other hand, la r k McCloskey, present d irecto r o f Hew Turk City*e
E ecreational and Community A c t iv it ie s , b e lie v e s , "One has to think -of
education as a life lo n g process and not something which i s blocked out
in set', periods o f years*
In t h is connection think how the darkened
school building* which you can see w ith in a few minutes walk from your
home, might be used to house t h is education*
The broadening sphere
o f educational a c t i v i t i e s , moreover, based upon a changed aim of
education and a m odified cu rricu la, has given r is e to con troversies
u n t il, as j u s t ic e Folland in d ica ted , "By enactments the L egislatu re
has enlarged the scope o f an educational program which the sta te may
fu rn ish to i t s c it iz e n s , both children and a d u lts, and has opened the
door o f opportunity to the boards o f education o f th e several school
d i s t r i c t s for the w idest p o ssib le use o f public sohool property in
the in te r e s t o f community development*"
THS PROBLEM AND 1TB SCOPE
The w riter purposes, th erefo re, through t h is study, to arrive
a t a c r i t i c a l a n a ly sis o f the le g a l bases o f the non-sohool use of
sohool property, to determine for what purposes, to what e x te n t, and
!_
U
598 j *8 * U 7723
Sugar
T tonroe - June 16, 1902
2«
School Page ~ Hew Tork Sun *» May 1, 193?
3*
IS Pa# (2d) 900 Beard v
Summit Sohool P is t r ic t
Board o f Education, North
December 10, 1932
J
'under what circumstances such use i s le g a lly perm issible today*
The
scop© o f t h is study i s lim ited to a study o f the present day le g a l
au th ority fo r th is "extended us©0 of school property in the fo r ty -e ig h t
s ta te s o f the United S tates*
Due recognition w i ll be given to the fa c t
th a t th e importance of the town in Bew Ingland* of th e county in the
South* o f the lo c a l d i s t r i c t in the Middle West* and o f the s iz e and
h eterogen eity o f m etropolitan c i t i e s w i l l a f f e c t the le g a l structure of
school d i s t r i c t s w ithin each o f these cla sses*
The study w i l l be divided in to four main d iv isio n s as follow s*
An a n a ly sis o f the s ta tu te s ofeach o f the fo r ty -e ig h t s ta te s o f the
United S ta tes w i l l be made and a c la s s if ic a t io n of th e perm issible uses
derived*
Since school d i s t r ic t s are quasi-corporations ‘’created for
the purpose o f adm inistering the s t a t e ’ s system of fr e e schools” to
whom authority i s delegated by the le g isla tu r e s* a rep resen tative
sampling o f the sohool board rules and regulation s or by-laws o f these
d i s t r i c t s w ill be analyzed* to determine how much of th is d isc r e tio n ­
ary authority i s used* what regu lation s are made for carrying th ese
mandates or sanctions Into e ffect* and whether or mot there are any
contradictions*
"Considerable li t ig a t io n would seem to imply doubt”j
but the courts have said th a t "the laws are perhaps e f f ic ie n t in
p recisio n and clea rn ess, but however fa u lty or im perfect in phraseology
or structure are bound to be given, by the courts such an interpret© tio n as may appear b est adapted to e ffe c tu a te the ob ject contemplated*”
1* Fred C* Hicks - M aterials and Methods o f le g a l Research 2nd e d itio n - 1933 p* 30
2*
3 Houston {Del*} 474 - Pickering v Day
-
1867
»A» a n a ly sis o f court d ecisio n s based on relevan t subject m atter w il l be1
made to determine what today c o n s titu te s a le g a l use and an i l l e g a l use
o f school property and a lso to determine how s t r i c t l y th e courts inter*
p ret the statu tes*
Opinions o f attorney^generals w ill be included where
doubt e x iste d concerning the decision*® bindingness today* fen sta te
sohool codes provide th a t t h e ir c h ie f s ta te school o f f ic e r s sh a ll have
ju d ic ia l power to hear appeals and give f in a l d ec isio n s thereon*
I t is*
o f course* recognised th a t the s ta te sohool officer*® authority r e s ts
on s ta tu te s and that h is d isc r e tio n must be exorcised w ithin the lim its
s e t down by the le g isla tu r e *
analysed and studied*
fhe d ecisio n s o f these o f f ic e r s w ill be
Superintendent Skinner i s exponent o f the view
‘-that th ese d e cisio n s o ften involve questions of p o lity as w e ll as o f
the con stru ction o f th e sta tu tes* and are la r g e ly questions with which
the courts are not fa m ilia r and of which they have no sp e cia l knowledge*M
From th ese analyses the w riter hopes to a rriv e a t a concept o f th e
present day v a rie ty and range o f the non*school u ses o f public school
property and a d e fin itio n o f what today c o n s titu te s a le g a l and an
i l l e g a l use o f school property*
BBTIEi? OF BELATED STUDIES
The pioneer in v e stig a tio n , made in 1915, was a study in p ra ctices
rather than one in authority*
I t was undertaken by Clarence Arthur
Ferry, a t the request o f Mr* P*F* Claxton, United S ta te s Commissioner
o f Education, who rea lized that the newly awakening in te r e s t in public
sohool exten sion was creatin g a demand for a wider use o f th e school
1.
Annual Beport o f S tate Department o f Education
1900
p»30
6
r plaat*
The report, e n title d * ”Tbe Extension o f Public Education", m s '
published in b u lle tin number tw enty-eight o f the United S ta te s Bureau
o f Education p u b lication s of 1915.
In the introduction to t h is paper
Commissioner Claxton an alyses the situ a tio n thus*
’’U n til w ithin th e
l a s t few years public school houses in American c i t i e s and towns were
open only fo r th e regular school work and for children of le g a l school
age#
For t h is purpose they were open only fro® one hundred and f i f t y
to one hundred and n in ety days in a year, a t o t a l of not more than
fourteen hundred hours a year* and were closed to a l l use throughout
the remainder o f th e eig h t thousand seven hundred and s ix ty hours of
the year."^
Perry gathered s t a t i s t i c s on the number and kinds o f community
a c t i v i t i e s , in the various sch ools of the several d is t r ic t s o f each of
the fo r ty -e ig h t s ta te s , and th e number o f meetings held per week*
Using the c r ite r io n , "Every work of improvement accomplished through
the public schools i s educational”, he analyzed these a c t i v it i e s and
concluded, "The teaching s t a f f and other machinery o f the sohool, being
thus unalterably dedicated to a betterment se r v ic e , i t follow s that
so c ie ty w i l l not permit the buildings*
which were erected s o le ly fo r
the purpose, to be put t o any sort o f contrary or d eterio ra tin g use*”
" S o ciety ,” he says, " p ossesses an opportunity which i t has already
begun to u se, by reason o f i t s va st equipment o f school accommodations,
which are not employed fo r th e ir o r ig in a l purpose during the periods
o f popular leisu re*
So* 28
I t can thus extend i t s d is t in c tiv e fu n ction o f
1* United S ta tes Bureau of Education P u b lication s
1916
-
s'lmproving human society*"*
“1
The next study, a lso one of p ra c tic e s, was made under the chair­
manship o f Oeorge S . Carothers* o f Ohio State U n iversity, by a committee
appointed in 1925 by the National Education A ssociation*
This committee
sought the help o f a l l sohool d is t r ic t s In the United S ta tes and publish­
ed the r e s u lt s o f i t s in v e stig a tio n under the t i t l e , "Report o f Comm ittee on Community R elations*"
Unfortunately th e report i s not con­
c lu s iv e , because the in v e stig a tio n was not completed*
The committee
did succeed, however, in drawing up a few important conclusions*
(1)
"That th e community i s e n t it le d to a use of i t s educational equipment
over and above th e period devoted to formal c la s s work i s now & general­
ly accepted principle*"
(2) "School systems vary from those having
reg u la tio n s barely perm itting the use o f f a c i l i t i e s by outsid e groups,
to th ose having regu lation s encouraging such use o f the f a c i l i t i e s in
p rin cip le but surrounded by a procedure, making such d i f f i c u l t •"
(3)
"A part o f the d i f f i c u l t y e x is t s in the confusion a s t o what c o n s titu te s
the Sohool Board’ s o b lig a tio n in t h is matter*
Should i t l e t buildings
ju st to g iv e the taxpayer more value fo r h is money, or does ’wider use*
c o n stitu te an exten sion o f the Board*e educational function?"
This
committee a lso s e t up a te n ta tiv e l i s t o f nine groups, which might
p e titio n the use o f the building*
The l i s t is as follow s* "Voluntary
a sso c ia tio n , public w elfare a s so c ia tio n , self-improvement a sso c ia tio n ,
recrea tio n a l groups, p artisan or p o lit ic a l clu b s, economic a sso cia ­
tio n s , propanganda groups, r e lig io u s groups, and se c r e t so cie ties* "
1* 0.A . Perry, "The Extension of Public Education", United
S ta te s Bureau of Education P u b lication s Ho* 28 - 1915
2*
PP * 233-9
Hationai Education A ssociation Proceedings - 1828 V ol. 64
j
7
rP ln ally the committee proposed a problem which i s s t i l l unsolved
"Whatl
i s the philosophy underlying th e le t t in g o f sohool f a c i l i t i e s free#
s i c o s t, and above oofb?**
The th ird study in t h i s f ie ld i s Punkef a, e n title d # "The Courts
and Public School P r o p e r t y * I n t h is may be found p r in c ip le s based
upon court d ecision s*
are included i . e . ,
Many phases o f the subject of school property
Contractual Authority# Authority to Provide Buildings
and S ite s fo r Sohool Purposes# procedure in Acquiring School Property,
D iscretion o f Sohool O ff ic ia ls in Providing B uildings and S ite s , Con­
t r a c ts fo r Construction o f School B u ild in gs, Surety Bonds o f Sohool
Building Contractors# Contracts for School Equipment and Supplies,
Holding and Managing School Properly, C o lla te ra l Use o f School Property,
Reversion of School Property to Grantor, Sale and Other D isp o sitio n of
Property*
in g s.
ihe eleven su b jects mentioned c o n s titu te the chapter head­
The coverage i s an ex ten siv e rather than an in ten siv e one*
A sim ila r study by Hodgdon i s e n t it le d "Legal Aspects in the
Adm inistration and Control o f public School Property*"
This study
a lso embraces many phases o f th e subject o f school property}
one
chapter, the eig h th , considers the ’"Use o f School P rop erty.” Here, to o ,
one observes a very ex ten siv e coverage, tending toward a more or l e s s
h is t o r ic a l development, y e t not e n t ir e ly ch ron ological.
Two of the
conclusions arrived a t by Hodgdon, in t h is chapter, are th a t there i s
a rap id ly changing conception o f the use to be made of school property,
*
1. Harold H. Punke - The Courts and Public School Property Ph. D . U n iversity o f Chicago 1928
2 . Daniel 1 . Hodgdon » Legal Aspects in the Adm inistration and
Control o f Public School Property - Ph. D. Hew Tork U n iversity 1931
!
J
6
Hand th at th© court© have a narrow concept o f the proper us© to be mad©-]
o f t h is property*
sinoe t h is work was prepared several in te r e stin g
oases have been adjudicated and many new enactments passed which would
negate some o f h is conclusions*
the study i s valuable for use by school
adm inistrators because i t exp lores the fie ld * and p oin ts the way toward
a need for continued research on t h is subject*
SOURCES OF DATA
the data used in t h is study were obtained from th e State School
Codes of each o f the forty*.eight sta te s o f the United States* and
m odified by enactments passed sin ce th© p u b lication s or r e v isio n s of
the Codes*
Most sta te le g is la tu r e s meet in the odd-numbered years*
Kentucky* Louisiana* M ississip p i* and V irgin ia are exceptions to t h is
rule* th e ir le g is la tu r e s meeting in the even-numbered years;
while
the le g is la tu r e s o f Massachusetts* Hew Jersey* Hew fork* Rhode Islan d,
and South Carolina meet annually*
some sp e cia l sessio n s were h eld .
I t should a lso be remembered that
Supplements to the various school
codes and the b ien n ia l survey o f sta te sohool le g is la t io n , published
by the United S ta te s O ffice o f Education were consulted for changes*
The annual surveys of sta te school le g is la t io n and the more recent
mimeographed b u lle tin s e n title d * "High Spots in School L eg isla tio n ”,
published by the n ation al Education A ssociation served as a check
on the data*
Th© foregoing sources were consulted , and an a n a ly sis and
c la s s if ic a t io n made of those p ertinent to the subject matter in
hand.
In making t h is c la s s if ic a t io n based upon the a n a ly sis , th©
general p r in c ip le s of statu tory construction were observed*
i~
Some of
J
9
rthese are a s follow s*
(1) When a sta tu te ©numerates in d e t a il th©
”1
pothers conferred, followed by a general grant, then the general grant i s
lim ited by the s p e c ific grants preceding and the general grant i s not to
be in terpreted as standing alonej
(2) A sta tu te i s a le g is la t iv e enact­
ment, duly sanctioned and authenticated, intended to be p r e c ise ly worded#
Every word, phrase, or sentence contained in a le g is la t iv e enactment
i s supposed to have been exp ressly chosen to express the exact in ten tion
o f th© law makeri
(3) The language employed by the le g is la tu r e must
be given i t s o rd in a rily accepted meaning!
when the sta tu te i s clea r
there i s no room fo r in terp reta tio n by the courtsj
mention i s an implied ex clu sion !
(4) An express
(3) The sta tu te must be construed
as a whole, and e f f e c t given to every part thereof#
A study of the
several s ta te c o n stitu tio n s was not included since the courts have
h eld , ”Xt would be a palpable v io la tio n of ju d ic ia l duty and propriety
to seek in a sta tu te a construction in c o n flic t w ith the co n stitu tio n
or w ith th e ob ject of i t s enactment!
or to admit such a con­
stru ctio n when the sta tu te i s f a ir ly su scep tib le o f another in accord
w ith th© c o n stitu tio n and the le g is la t iv e In ten tio n s
W© sh a ll
g
hold a l l sta tu te s framed and passed in good f a i t h , ” and on another
occasion , ’’The presumption always i s th a t the L egislatu re does not
intend t o v io la te the c o n s tit u tio n .”^
The court d ec isio n s were taken d ir e c t from the s ta te reporters
1# Q. A. End11 oh ** A Commentary on the In terp retation of the
S ta tu tes p# 4 and p# 683
2#
Aug. 1876
3#
40 Wis# 633
S tate of Wisconsin
229 Pa. St# 132
Commonwealth
v
v
City of Eau C laire Herr
duly 1, 1910
J
^wherever p o s s ib le , and checked for accuracy by the use of th e American-^
D igest*
Her© the method employed was to s e le c t the e s s e n tia l elements
in a d ec isio n , ©#g* the subject m atter, the p a r tie s concerned, the cause
o f a c tio n , the p oin t in controversy, and th e r a tio decidendi*
The
d ec isio n s o f the supreme cou rts of the various s ta t e s , by whatever
a p p ella tio n known, were th ose se le cted fo r study*
Since th e o b ject was
to g e t a present day concept i t was necessary to check to see i f such
d ec isio n s a re, a t presen t, binding#
The Annotated Case S eries shows the
present sta te of case law on the su b ject, and p oin ts out whether i t
agrees or d isagrees with the old p r in c ip le s o f law#
These d ecision s
were then placed, i f p o ss ib le , in one of the c la s s if ic a t io n s e s ta b lis h ­
ed as a r e s u lt of th e a n a ly sis of the school codes#
At tim es the
d ecisio n was a le g a l d e fin itio n of th e terms used in the statu tes#
Such
c la r if ic a t io n was exem plified when the C alifornia A ppellate court de­
fin ed a “recreation al a c t iv it y 1*, when the Utah Supreme Court defined
"commercial purpose", when the Montana Supreme Court defined "entertain­
ment”, when the Indiana Supreme Court explained the meaning of "when
school i s in sessio n " , and when the Arizona Supreme Court c la s s if ie d a
"stadium" a s a school house#
The Corpus J u rls and American Encyclo­
pedia of Law and |¥ocedure were valuable for v e r ific a tio n purposes,
sin ce they s e le c t the le g a l p r in c ip le s involved in the various cases*
In studying th ese c a s e s, one became more convinced th at courts are
bound to decide so as to e ffe c tu a te the object contemplated, and t h is
in te r p r e ta tio n , where doubt e x i s t s , must be the moat reasonable and
b e n e fic ia l construction*
The w riter, th erefo re, has included exten­
siv e excerpts from the d ecision s so that the reason, which i s the
v i t a l force o f th© law, may be eviden t to the reader#
1-
Here caution
J
rhad to b© observed for* as the j u s t ic e of th e C alifornia A ppellate
-7
Court indicated* -when referrin g to some oases o ite d by counsel* ’’As to
the oases oited* they must* n a tu ra lly be regarded in th e lig h t of the
p rovision s of the sta tu te in the various s ta te s wherein said opinions
were rendered*”4
While i t i s true th at school d i s t r i c t s are quasi-public cor­
porations and have* and can exercise* only such powers as are conferred
by statute* or a r ise from th e reasonable and necessary im p lication s of
the sta tu te* n everth eless* a study of t h is type would not be complete
i f i t fa ile d to include an a n a ly sis o f a rep resen tative sampling o f the
r u le s and regu lation s la id down by th ese school boardsj
since "an
e s s e n t ia l c h a r a c te r istic o f a l l research i s th© requirement th at a l l
p ertin en t a v a ila b le fa c ts be examined before venturing to a sse r t a con­
clusion."^
th e n e c e s sity fo r a study o f such regulations* in a work
of t h is ty p e, i s further evidenced when one observes th a t the school
codes frequently sp ecify laws ap p licab le only to a p articu lar c la s s
of school d i s t r i c t .
In an attempt to keep t o a minimum the number of
co p ies o f school board regu lation s to be included In t h is representa­
t iv e sampling* th© a ssista n c e of Dr* Gallup o f th© American I n s titu te
o f Public Opinion was sought*
With the advice thus obtained in mind,
and with a d esire to make allowance for n o n -a v a ila b ility o f the
reg u la tio n s in some d is tr ic ts * i t was considered wise to attempt to
secure cop ies o f the by-laws from ten sohool d i s t r i c t s of each s ta te .
«*«* m
***** «n
«t»«•«*
1*
? ls a lia
m*
38 €al* App. 500 McClure e t a l
October 24, 1918
2.
2nd e d itio n 1983
v
Board of Education -
Fred. C. Hicks - M aterials and Methods of Legal K©search
p. 30
Hfhe d i s t r i c t s were chosen on the b a sis of population fig u r e s as reveal*1
©d in th© United S ta te s
groups*
(1)
Uensus Beports,
those with a population of
and were divided in to f iv e
one hundredthousand or more,
(2) those with a population between f i f t y and on© hundred thousand, (3)
those with a population between tw en ty-five and f i f t y thousand, (4)
those with a
population between ten and
tw en ty-five thousand, and (6)
those with a
population o f ten thousand
or fewer# Included in the
study were the school board regu lations o f approximately f iv e school
d i s t r i c t s o f each s t a t e , including those o f the sm allest d i s t r ic t and
th© la r g e st d is tr ic t*
See appendix for ta b le s o f d istr ib u tio n o f these
d i s t r i c t s and o f the court cases studied#
One had t o consider th a t o f th© n in ety-th ree c i t i e s with a
population o f one hundred*-thou sand or greater in tb© United S ta te s,
f if t y - f o u r or almost s ix ty per cent are located in eigh t s ta te s of the
Union*
Bighty of th ese c i t i e s are found in nineteen sta te s and there
are ten s ta te s in the United sta tes which have no c it y with a popula­
tio n of f i f t y thousand or greater*
I t was a t once evident th at the
number and sis© o f school d i s t r i c t s in each of the s ta t e s v a r ie s so
g r ea tly th a t s ta te by sta te comparisons would be d if f ic u lt *
One o f the
s ta te s, which caused great d if f ic u lt y because o f lack of data was
Nevada, but sin ce th ere are in th e s ta te only f iv e l o c a l i t i e s having
a population o f tw en ty-five hundred or grea ter, i t was not to be
«p*«■»«*•«*• *-*«*• «■»m* m m
1. The wisdom o f s e ttin g the o r ig in a l quota a t ten sohool d is ­
t r i c t s fo r each sta te was soon apparent, as Mulford in d ica tes in h is
recent a r t ic le (Herbert B« Mulford - By-laws fo r Boards o f Education American School Board Journal, Yol* 97 $-2 Aug* 1938) "On a recent
occasion”, he w r ite s , "when about f i f t y presid ents o f boards o f
education were in conference, someone asked how many o f the boards
there represented used by-law s. Only one p resid en t, attending,
responded in the a ffir m a tiv e .”
n
r expeeted th a t so much data could b© found fo r th is s t a t e , as oould be
secured from a s ta te such as M assachusetts, vhich has nine c i t i e s with
a population of one hundred thousand or more#
Th© sta te s of Idaho,
Wyoming, and Vermont presented a sim ilar problem to that o f Nevada, a l­
though not so great in extent*
The importance o f the county in the south,
p a rtic u la r ly in such s ta te s as Arizona, F lorid a, and l e s t V irg in ia , mad©
i t d i f f ic u lt to c la s s if y a school d is t r ic t as t o s iz e because the fig u re s
furnished include the counties*
Despit© a l l th ese d i f f i c u l t i e s s u f f i­
cie n t m aterial m s obtained to make the study p ossible**
The f in a l source from which th e data were obtained was the de­
c is io n s rendered by c h ie f sta te school o f f ic e r s , in those s ta te s where
such o f fic e r s have ju d ic ia l power over t h is phase of th e law, i .e « ,
Colorado, Iowa, Nebraska, Hew Jersey, Hew York, Rhode Islan d , Texas,
Washington, West V irginia and Wyoming*
Of the te n s ta te s , whose
c h ie f sta te sohool o f f ic e r s have ju d ic ia l power, only six have such
d ecisio n s published.
The sta te school codes o f Iowa and Nebraska con­
ta in the printed d ecisio n s o f t h e ir resp ectiv e o ffic e r s*
The
’’Washington Code o f Public Instruction" contains the printed d ecision s
o f i t s c h ie f sta te sohool o fficer*
Volumes e n t it le d , "Sohool law
D ecisions o f the Commissioner of Education", published in 1928, 1932,
and again in 1938 are devoted to th* d ecisio n s of New J ersey ’ s Com­
m issioner o f Education*
The d e c isio n s of New York’ s Commissioner o f
Education prior to the year 1913 may be found in a volume e n title d
"Judicial D ecisions", and in -the r e sp e c tiv e "Annual Reports" and
1* P r a c tic a lly a l l of the data used i s o f a ju d ic ia l nature}
but Mulford’ s in q u ir ie s, included in the a r t ic le in the American
School Board Journal mentioned above, prompted an in clu sio n of some
r e p lie s received from d i s t r i c t s fo r which no by-laws were availab le*
14
^ S tate Department Reports" from n in eteen -th irteen forward*
A volume
^
e n t it le d , "The Handbook of Texas School law", ed ited by J *C. H i'isley,
contains the d ecisio n s o f Texas* State Superintendent o f Public Instruc­
tion*
The d ec isio n s of th e s ta te o f f ic e r s o f the remaining four sta te s
can be found only In the f i l e s o f the resp ective o f f ic e s o f education*
Ihe reader w ill observe that in the pre sent at ion of t h is data th ese four
types o f a n a ly sis are prominently marked a s d iv isio n s whenever such i s
availab le*
WEED FOR STUDY
A ll s ta tu te s , and ed u cational s ta tu te s in p a rtic u la r, are the
products o f growth and constant change, and hence i t sometimes happens
th at through the process o f continu al amendment a sta tu te tends to be­
come somewhat obscure in i t s provisions*
Case law in ter p r ets and
c l a r i f i e s t h is statu tory law as w e ll a s d etem ln es i t s r ela tio n sh ip to
the con stitu tion *
"This le g a l research c o n s titu te s one o f the impor­
tan t f ie ld s of educational research*
JPublic sch ools and school d is ­
t r i c t s are in the la s t a n a ly s is , creatures of law*
Their adm inistra­
tiv e stru ctu re, fu n c tio n s, and a u th ority are dependent upon laws and
le g a l decisions*
With fo r ty -e ig h t s ta te s , in ad d ition to th e fed eral
government, developing i t s own le g a l system, a wide v a r ie ty o f educa­
tio n a l p ra c tic es has been developed during th e la s t century and a
h a lf ,* ,* Such research i s needed to provide a body of knowledge for
the guidance of those charged with th© r e s p o n sib ility o f making new
laws and modifying old ones*
L eg isla tu res cannot afford to pass laws
fo r tu ito u sly when ca refu l research can reveal to them the experience
L_
_I
10
fof th© fo rty -sev en other e ta te s along sim illa r lin e e ." *
n
But i t i s not only le g is la t u r e s which are so badly in need o f
t h is research.
J u stic e Cardoza previously pointed out th a t th ere i s &
need fo r educators to know th e law.
t h i s need i s evidenced by the largi
number o f oases th at have come to the courts for ad ju d ication ,
These
t r i a l s involve sums o f money# much le g a l controversy and an aftermath
o f acrimony and discord which p r e v a ils in th e d i s t r ic t concerned# un­
fo rtu n a tely to the detriment of children for whom th e schools were
o r ig in a lly er ec te d .
To r e a liz e how unnecessary and w asteful many o f
these t r i a l s are# one has but to read th e reasoning o f the courts in a
very few oases*
Brubacher ind icated in h is study of the "J u d icia l
Power o f the Hew York S tate Commissioner of Education** th at "many
appeals are brought with l i t t l e forethought or previous study o f the
8
l e g i s l a t i v e enactments on education."
In t h i s one s ta te alone# 1740
appeals were brought in l e s s than three years*
The le g i s la t iv e enact*
meats were resp on sib le for a great many o f th e appeals brought, "for
many years the school laws d e a lt only in fe r e n tia lly with th e problem
o f using the school b u ilding fo r other than s t r i c t l y school purposes*
The s ta tu te s put -the b u ild in g s in the custody of the lo c a l a u th o r itie s
and th e im p lication was th at t h e ir custody was fo r the purposes
enumerated in the school laws*"3
In ru lin g on a case brought for
appeal in 1833# th e c h ie f s ta te school o fficer# S tate Superintendent of
1. Qyr and Cunin, n& Guide to Research in School law", Journal
of Educational Sosearch Vol. 30 #7 March 1937 pp. 000-21
2* John ‘Seiler' Brubacher * J u d icia l Power of Hew Tork S tate
Commissioner o f Education - 1927 p. 65
$.
L-
I b id .,
pp. 130-1
16
1Common Schools, John Dlx h eld , **l do not consider th e voice of a
n
m ajority of ih e inhabitants of a d i s t r i c t as a proper c r ite r io n for
determining th e propriety of applying a sohoolhouse to other uses than
that for •which i t was designed*"^
Such lack of s p e c if ic la w on the
question i s n ot, however, the case in a large m ajority of the s ta t e s
today j
hut a d e fin ite study of these laws i s s t i l l lacking in too many
school d is t r ic t s *
S ta te education departments and ch ie f sta te school o f f ic e r s have
evidenced th e ir cognisance of the need fo r a greater understanding o f
the statu tes*
The S tate superintendent of Wisconsin, in d istrib u tin g
the new ly-revi sed e d itio n o f the school code, w r ite s, nX recommend that
the school code be taken to a l l school board m eetings a s w ell as to the
annual sohool meeting so th a t the bu siness o f the d i s t r ic t can be tran sacted in accordance with le g a l procedures, in so fa r as the same can
be determined by follow in g the provisions of the law**.* 1 am not advo­
ca tin g th a t every school board member must fu nction as a lawyer in
order to in te r p r e t the code, or indulge in h a ir -s p litt in g d is tin c tio n s
a s t o the meaning of a c lo s e ly w ritten s ta tu te .
But i t i s remarkable
how much an o rd in a rily I n t e llig e n t board can accomplish In avoiding
le g a l com plications by g ivin g assiduous a tten tio n to the p rovision s of
the code in tra n sa ctin g b u sin ess fo r the d i s t r i c t . T h e Commission­
er o f Education o f Minnesota warns, wThe d u ties o f school o f fic e r s
are many and often d i f f ic u lt and laws governing our schools are of the
g r e a te st im portance*..*
We tr u st that th is com pilation with th e accom­
panying c ita tio n s of opinions o f the Attorney General and p ertinent
!
1.
J u d icia l D ecisions
1832-1913
Feb* 19,1833
p. 877
2.
Foreword to the Wisconsin S tate Sohool Law 1936
J
17
r'dftolslon* by our supreme eouHs m y be found h elp fu l and meet with
~i
approval•"*
T h is-d esire to a s s i s t school o ffic e r s In th e ir ta sk s , to the end
th at leg a l com plications may be avoided, i s a ls o mani f e s t in the pre­
fa c es of the sta te school codes of Idaho and Iowa;
where school o f f ic e r s
are urged "to endeavor t o acquaint the©selves with the le g a l p rovisions
designed t o regu late the sch ools entrusted to t h e ir care, to the end
th a t there m y be a sta b le end harmonious adm inistration of school
a f fa ir s throughout the state**1 D ecision s of the c h ie f s ta te school
o f f ic e r s o f Nebraska, Iowa, and Washington are included in the respec­
tiv e school codes subsequent to the se c tio n s to which such interpre­
ta tio n s apply*
The sta tu tes of Borth Dakota and Oklahoma provide for
the p erio d ica l p u b lication and d istr ib u tio n o f the school laws by the
Superintendents n&th such forms, n o tes, in str u c tio n s and d ecisio n s
as may seem to him advisable*
th e South Dakota rev isio n contains ex­
plan ation s of some o f the s ta tu te s , based on questions which have
previously been asked;
w hile th a t of Ohio in clu d es notes to c la r if y
some s p e c ific s e c tio n s .
The State Education Department o f Delaware
issu e s a handbook for the guidance o f school o f f ic e r s in in terp retin g
the sta tu te s* and the reg u la tio n s of the s ta te boards of education are
X
included in the codes o f Hew Hampshire and South Carolina.
Chapter
four of the Iowa Code, and Chapter 32 o f the Rhode Island Code are
devoted s o le ly to the method of construing the sta tu tes* based on
d ec isio n s rendered in the co u rts.
The le g is la tu r e of F lorida passed
a b i l l forming a ttSchool Code Committee" to make a thorough study and
I,
—
Foreword to the Laws of Minnesota 1931
I
18
A n a ly s is of th e problem with a view to submitting a new school code to”1
the L egislature*
w h ile th a t o f Colorado enacted a
sectio n o a llin g for
an "interim Committee1* "to study the problems concerning public education
in the sta te and to report i t s fin d in gs and recommendations to the th ir ty f i r s t General Assembly on or before the tenth day o f January 193?#”
In
North Carolina an a ct of the L egislature created a "Commission to study
the school problems of the s ta te and suggest needed le g is la t io n t o the
next General Assembly#"
The opinions rendered by the resp ectiv e
attorney g en era ls are included in the school codes o f Ohio, Oklahoma,
Arizona, Minnesota, Washington, and Wisconsin follow in g the p ertinent
s e c tio n s , and a t the end of the school codes of New Mexico and Vermont*
Supreme court d e cisio n s are c ite d follow in g the rela ted sectio n s in the
sch ool,cod es o f Arizona, Connecticut, Kansas, Kentucky, Michigan, North
C arolina, Ohio, Oklahoma, South Carolina, Minnesota, Tennessee, Texas,
V irg in ia , and Washington#
The School Board R egulations of Kansas City,
M issouri, require "that the Superintendent of Schools s h a ll keep him­
s e l f informed o f improvements and developments in the adaptation of
school b u ild in g s to educational purposes*"
The Rhode Island School
Code has annotations o f Supreme Court Cases, and, because the D irect­
or of Education, formerly Commissioner o f Education, has ju d ic ia l power
in th e s ta te there I s a sta tu te which g iv e s him ^authority from time
to tim e t o p rescribe r u le s, regu latin g the time and manner o f taking
appeals, and to prevent appeals fo r t r if lin g and fr iv o lo u s causes*"
F in a lly , p r a c tic a lly a l l s ta te sch ool codes require the c h ie f sta te
school o f f ic e r to exp lain the true in ten t and meaning o f the school
laws when requested*
That th ere i s unquestionable evidence of a recogn ition of the
L
_
J
19
rimporfcanoe o f l e g is la t iv e enactments, a determination to solve the
“1
school problem, a cognizance of the n e c e ssity for school o f f ic e r s t o be
conversant with the law# an attem pt t o a s s i s t school o f f ic e r s in the
in terp reta tio n o f the law# and a film reso lv e to minimize lit ig a t io n for
the purpose o f insuring sta b le and haraonious school adm inistrations
would seem to require no further proof.
the w riter shares the viewpoint of Hodgdon, when he senses na
need for educational lead ers versed in case law and the sta tu te s con­
cerning school property as part of t h e ir educational equipment*n*
In
only one ca se, thus fa r , has any attempt been made to insure some
such preparation*
An a c t of the 1937 sessio n o f the Oregon L egislatu re
requires that "preparation in . . .
the Oregon School Law . . . wi s to
be required fo r c e r t ific a t io n to teach in elementary or high schools*
Meanwhile i t i s hoped th a t, through t h is study, su b sta n tia l a ssista n ce
may be given in in terp retin g and understanding ju st one very con­
tr o v e r s ia l and tim ely phase of t h is law, the non-school use of public
school property.
That such a ssista n c e would be welcome i s evidenced
by the number of requests, received by the w riter from school board
o f f ic e r s , from *hom school board regu lation s were sought for th is study,
fo r a report of 1he fin d in g s vhen completed#
LIMITATIONS
This study concerns the fo r ty -e ig h t s ta te s o f the United S ta te s.
No attempt i s made t o show an h is t o r ic a l development of t h is phase o f
school law, nor i s any attempt made to show the development o f school
1* Daniel 1. Hodgdon - "Legal Aspects in Administration and
Control of Public School Property - Ph. D* N* f* U n iversity - 1931
i_
J
20
■law in t h is young rep u b lic, nor to trace i t s o rig in in any p articu lar ^
sta te to any p a rticu la r countiy or group of countries*
Palpably school
law had i t s beginnings in those sta tes which formed the e a r ly union,and
w hile annexation continued, new s t a t e s were forced t o adapt themselves
t o con d ition s as th ey found them#
An increasing school population and
a new conception o f education have awakened an in te r e s t in t h is problem
and i t i s the present day concept to which t h is study i s devoted.
School Property, as used in t h is study i s lim ited to th e school build­
ing, or school as i t i s o rd in arily conceived, with i t s equipment.
A l­
though school text-books and tran sp ortation f a c i l i t i e s , may, in a
sen se, be considered school property, th ey are d e lib e r a te ly omitted
from t h is study fo r the reason th at th eir use is a t present, such a
con tro v ersia l matter and th e data thereon o f such tremendous exten t
th at a study o f e ith e r one would c o n s titu te a f ie ld of research in i t ­
s e lf,
The school as an organisation, in which the student body i s the
medium for use, i s d iffe r e n tia te d from a mere use of public school
property.
Such uses are included in t h is study because the organisa­
tio n , as suoh, makes use of the property*
"Non-School tJsen, in t h is
report refers to any use not a part of the regular school curriculum,
and any use p articip ated in by any ind ividu al or group not a part o f
the regular school organisation as provided in the resp ectiv e sta te
school codes*
i_
_I
CHAPTER
1
II
COMMERCIAL USB OF THE SCHOOLS
Hhil© i t i s evid en t to e l l concerned th a t an in te r e s t in a "wider
use of the school plant has been r e fle c te d in some s ta te s by more lib e r ­
a l ru lin g s of the courts, end in others by s p e c ific le g is la t iv e enact*
1
ments authorising t h is wider u se”) y e t there i s m anifest throughout the
school codes of the fo rty -e ig h t sta te s and in the school board ru les,
and r eg u la tio n s o f the various d i s t r i c t s , located th erein , a w e lldefined mandate th at commercial use of the schools w i l l not be perm itt­
ed#
I t i s not surprisin g, th erefo re , th a t of a l l the c a s e s, brought
before the s ta te sc h o o l-o ffic e r s and the cou rts for adjudication, those
In which the cause fo r complaint has been an a lleg ed commercial use are
in a m ajority#
Local groups of c it iz e n s , p a r tic u la r ly business menf s organisa­
t io n s , have never f a ile d to seek red ress, where the use bears any
resemblance to commercial use o f the school f a c i l i t i e s #
In many of
these cases they have been motivated by m aterial decreases in th eir
p a rticu la r b u sin esses and by the resu lta n t un profitableness of such
e n te r p r ise s.
The co n tin u a lly broadening sphere of educational ac­
t i v i t i e s i s resp o n sib le, in no small measure, for th e se aggrieved
fe elin g s#
Another, but none th e le s s Important fa cto r i s the rapid*
l y expanding program o f modem school construction#
"All modem plans",
says Cubberley, "for a l l types of school b u ild in g s a t once suggest
larger community u sefu ln ess fo r them, than th e mere seat work in <■»« « « * # afc-
-<**«■»**-#■«
1# Harold H. Punke - The Courts and Public School Property
p# 260
U tru etio n of children for a few hour® a day*
A modern school b u ild in g-1
should be capable of being transformed in to a coxnmunity-center in s t it u ­
tio n , m in isterin g to the needs o f both the children and the ad u lts of the
community both in the d aytire and in the evening and fo r almost the
t
e n tir e year.'*
This concept of the purpose and u sefu ln ess o f a modern
school b u ilding i s not e a s ily found acceptable by th a t large group of
American business men ’who have conceived of a school a s an in s t itu t io n ,
th ose doors were closed f iv e - s ix t h s o f the year*
f h e ir charge of
"commercial use", th er efo re , i s not d i f f i c u l t to understand*
"The crux o f t h is m atter", as j u s t ic e Folland of the Utah
Supreme Court r e fle c te d in nineteen hundred th irty -tw o , -when deciding
the appeal brought by the Iforth Summit School D is t r ic t , "la to deter­
mine what i s meant by th e phrase Commercial purposes* as used in
g
sec tio n 4587 Jpf the sta tu tes] *
I s the t e s t of commercial purpose
the fa c t th a t a fe e i s charged or c o lle c te d fo r admission to any
game, c o n te st, show, entertainm ent or other a c tiv ity ?
The sta tu te
makes no such te st*
On the contrary the s ta tu te , sectio n 4552 conA
tem plates th a t such a fe e may be la w fu lly charged*"
Continuing,
the j u s t ic e pondered, "What then i s a commercial purpose?
The word
purpose i s defined in Webster*s lew In tern ation al D ictionary as *That
•which one s e ts before him self as an ob ject to be obtained}
the end
or aim to be kept in view in any plan, measure, exertion or operation}
1* Ellwood P* Cubberley - Public School Adm inistration
p. 587
2* School haws of the S tate o f Utah 1935 - Sec. 75-22-5 p. 46
3* Ib id * ,
Sec * 75—22—2 p .46
4 . 16 P (2d) 900 Beard v Board of Education of forth Summit
School D is t r ic t Dec* 10, 1932
rd©signs intention**
In the aam© dictionary the word ♦commercial* i f
”1
defined as *of or pertaining to commerce! mercantile* hence variou sly
occupied with commerces
engaged in a trade1*
The word ♦commerce* i s
defined a s ♦business intercourse* e s p e c ia lly th e exchange of raerohand isc on a large sc a le between d iffe r e n t p laces or communities! extend-*
ed trade or tra ffic* " ^
7h© j u s t ic e then referred t o ru lin gs concern*
ing th e a tr ic a l amusements a s non-commercial because nothing i s trans­
ferred in th e p rocess, concerning b aseb all as a sport* not trade, con­
cerning grand opera a s in volving none of th e elem ents o f trade or
commerce as commonly understood*2
In summing up the j u s t ic e declared,
"We must conclude th a t, while the conducting o f motion p ictu re shows,
dances and other entertainm ents, where admission i s charged, may have
some b u sin ess a sp e cts, y e t in view o f the wording o f our s ta tu te , we
cannot say th at the L egislatu re Intended by the word *commercial* to
exclude a l l games, dances, b a se b a ll, f o o tb a ll, b a sk etb a ll, debates,
le c tu r e s, or other m usical entertainm ents, where a charge i s made for
admission to such entertainments*
Entertainments o f t h is nature can­
not in th e presence of th e well-known d e fin itio n o f the word be said
to be oommeroial because there is no merchandise or commodity exchang­
ed, bought or sold***#
The school a u th o r itie s were not engaged in
ordinary business tra n sa ctio n s, but permitted atudent-body a c t i v it i e s
for the purpose of train in g the students in b u siness management and
s e If-g overnment *"®
1.
Ib id *, p. 912
Zm 269 F
147 N.Y<S* 532
A pril 17, 1914
]_-
3*
Beard
M etropolitan Opera Go#,
r
v Hammerste in
v Board o f Education of florth Summit - Op* c i t . ,
j
r
Many in cid e n ta l d ec isio n s were wade in the sours© o f the pro*
seedings*
I t i s s ig n ific a n t th at the sta tu es contemplate no commercial
u se , hut n eith er do th ey intend th a t boards of education sh a ll he so re­
s tr ic t e d , in th e ir attempt to avoid such u se, th at school adm inistration
i s s e r io u s ly hampered#
Such a lleg ed u ses may he divided roughly in to
two ca te g o r ie s, th o se in which the us© complained of i s a use o f the
sch ools as d istin g u ish ed from those in which the use protested i s a use
o f school property*
The la t t e r w ill be treated in the chapter follow *
ing t h is one*
ADTOllSIMq
I t Is not surprising th a t the school board ru le s and regulatier© are much more e x p lic it than th e sta te school codes on the com­
m ercial use o f sch ools p a rtic u la rly those occurring during the regular
school hoursi since th e ir con tacts w ith the a ctu a l con d ition s are so
much closer*
A ll school d i s t r i c t s , small and la rg e, have such a prob­
lem with which to cope* but w hile the number of requests i s not so
great in the smaller d i s t r i c t s , the consequences attending refu sa l of
such req u ests are s u f f ic ie n t ly great to tempt school officer® to
n e g lect the more serio u s e f f e c t s on th e children concerned*
Twenty-
f iv e d iffe r e n t f o m s o f commercial use of the schools during regular
school hour® were found in the regu lation s studied*
The g r e a te st
number o f p ro h ib itio n s was found under the s p e c if ic ban on "advertis­
ing1*♦ Many o f the other types l is t e d are, however, forms o f adver­
tisin g *
For t h i s reason the ban® on a d v ertisin g w i l l be studied f ir s t #
The S tatu tes I t was nob u n til 1933 that th e general Assembly o f
yprth Carolina was
forced t o enact le g is la t io n to prevent such commer-j
25
fo ia l use*
The a ct reads,
"Whareas, many s e llin g and ad vertisin g oampaigns are being promoted
through U is public schools of North Carolina! and
Whereas, undue pressure i s brought to bear upon both teachers and
p u p ilsj
and
Whereas,such p r a c tic e s tend to disrupt and com mercialise the work of
the schools! How, Therefore, The General Assembly of North Carolina
do enactj No person, agen t, rep resen ta tiv e, or salesman s h a ll s o l i c i t
or attempt to s e l l or explain any a r t i c l e of property or p rep osition to
any teacher or pupil of any public school on the school grounds or dur­
ing the school day without f i r s t having secured w ritten perm ission and
consent o f th e superintendent*.,*n l
A d e ta ile d sta tu te of the North
Dakota laws p ro h ib its attem pts a t s e llin g , a d v ertisin g fo r sa le , secur­
ing orders, attem pts a t securing su b scrip tion s, or obtaining agents or
s o lic it o r s fo r any such purpose through th e agency of any public school
in the state*
2
Board Regulations
A sectio n of th e Board R ules and Regulations
of th e La Porte, Indiana school d i s t r i c t i s so rep resen tative o f a
cognisance o f th e co n d itio n s confronting a l l school systems th at i t i s
herewith reproduced*
'‘Knowing th a t many requests are made for the use
o f teach ers1 and pupils* time fo r various p ro jects th at contribute l i t t l e
or nothing t o the educational program and that op p ortu n ities are sought
fo r ad v ertisin g d ir e c tly and in d ir e c tly fo r commercial gain in the schools
by rep resen ta tiv es o f b u sin ess hou ses, we .* . approve the follow ing
•»«»«»> «**•«* «*»«***«* «**•»
1# Public School Laws of North Carolina A pril 5, 1933 - Supplement
2*
L_
North Dakota - General School Laws 1935 - Sec* 686 p* 258
J
rprooedure #. #." ^
The March 1936 rev i s i on Of the school board ru les ^
Of Bethlehem, Pennsylvania contains a sim ila r but somewhat stronger regu­
la tio n ,
"Owing to the magnitude o f our school system and the frequent
in terru p tio n s from people who d esire to use t h is school system for ad­
v e r tisin g or commercial purposes, the board reaffirm s I t s p o sitio n that
the schools s h a ll not be used for ad vertisin g or commercial purposes by
any in d iv id u a l, firm, or corporation whether of our c i t y or not and the
Superintendent i s authorised end in stru cted to prevent any and a l l
attem pts to a c t contrary to th is rule#"
*2
Of th e school d i s t r i c t s stud ied, one hundred eighteen ban adver­
t is in g , though in l e s s d e ta ile d terms than those c ite d above#
Hinety-
nine o f th ese d i s t r i c t s s p e c if ic a lly proscribe the reading or d is t r i ­
bution o f any advertisem ent on or about the premise si
whereas th e other
n ineteen d i s t r i c t s convey the meaning set down in the regu lation s o f
Waterbury Connecticut*
"##*no person *.# s h a ll post upon the w a lls of
.3
any sch ool building or fence about the same any a d v e r t i s e m e n t "
to provide for extenuating circum stances, eleven board regu lation s con­
ta in the saving "unless authorised by the superintendent", four so
p roh ib it "without the w ritten order o f the superintendent", w hile two
d i s t r i c t s stip u la te "without th e consent of the board#"
Three d is ­
t r i c t s d efin e "premises" as used in the ru les to include "land to the
centre o f the s tr e e t s bounding the property."
Wilmington,
Delaware
1#
Buies and Regulations of the Board o f Education of the
Public Schools of La Porte, Indiana 1929 p# 16-7
2.
B uies and R egulations o f the School D is t r ic t o f Bethlehem,
Pa. Mar# 1936 Art I% Sec. 6 p#44
3# Rules and R egulations o f Board of Education - Waterbury
JL937 Sec# 11 p# 38
_l
27
^regulations sp eo ify th a t the ru le forbidding "advertising of any char-^
a cter whatsoever" sh a ll not be interpreted to preclude securing such
1
magazines .etc* a s , in th e opinion of the superintendent., are necessary# '
The d i s t r i c t o f Winston Salem, Borth Carolina requires th a t such
pro*
sc r ip tio n be interpreted, n eith er to d iscou rage'edu cation al in te r e s t#
sanctioned by the superintendent, nor to preclude the d istr ib u tio n o f
m aterial concerning r e lig io n s ■matters#
'Propaganda I s th e term applied in the Imporla, Kansas rule#
which ordain, "Teacher# s h a ll not allow any agent or other person to ex*
h ib it in the school# any a r t ic le or d istr ib u te any c ir c u la r s , h an d b ill#,
card s, or other propaganda f or s e llin g goods . . . . "
.2'
Bo e x h ib itio n s o f
books, maps or other a r t ic le s are permitted in the school b u ild in gs by
reg u la tio n o f f if t y - e ig h t d is t r ic t s #
"Unless authorised by the super­
intendent** i s th e exception In seven o f th ese d i s t r i c t s , whereas a
w ritten order o f said o ffic e r i s required In three d i s t r i c t s , the con*
sent of th e board in tw o, and th e consent o f board and superintendent
in another#
E xhibitions o f school a c t i v it i e s are exempt from t h is ban
in Terr© Haute,, Indiana? and public lib r a r y ,.w e lfa r e a g en cies, I M #C .A.
■and f «M#0#A#ar© exempt in Knoxville#
The reg u la tio n s of Hartford,
Connecticut s p e c if ic a lly ban "displays fo r commercial purposes#**
P a rticip a tio n in manufacturers1' e x h ib its and the in s t a lla t io n o f sample
equipment are also, prohibited in three d istr ic ts# .
The ad v ertisin g or
d istr ib u tio n of newspapers or other publication# i s forbidden in twenty*
1# Rules of the Board o f Public Education In Wilmington Sept#
IS, 1933 A rt. XIV Sec# lb p. 53
2.
1937 Seo* 1
Rules and Regulations of Board o f Education * Emporia May
p# 15
28
r two d i s t r i c t s with tho usual exemptions.
^
A dvertising i s sometimes interpreted to include the us© o f
m aterial bearing a sp e cia l trad© mark or name*
the Spokane regu latio n s
provide th a t, "Teachers sh a ll not permit the sch ools to be used fo r
ad v ertisin g purposes*
M aterials such as calendars, rulers* e t c . , which
are o f d ir e c t value in school work may be used in the sc h o o ls.”^
the
K n oxville, Tennessee regulations* in referrin g to teachers* us© of
source m aterial* provide* "Ho m aterial sh a ll 'be used which a d v ertises
any p a rticu la r brand o f goods*
The name of the company through whose
compliments the m aterial i s d istrib u ted may* of course* appear on the
m aterial and such appearance sh a ll not cause the m aterial to be dis~
approved unless the name of the company i s so prominent on or in the
m aterial as to g iv e i t a d is t in c t ly ad vertisin g flavor.*
Such ques­
tio n s s h a ll be passed upon by a committee of teach ers appointed by the
Superintendent*
Iher© p ossib le* the name o f the a d v ertiser sh a ll be
covered or cu t out."
The fo llo w in g paragraph is subsequent to the
afore-mentioned ban*
"Upon th e ir own request teachers w ill be allow*
©d to use source m aterial from commercial agencies* provided that
t h is m aterial has been approved by th e superintendent or a committee
appointed by him*
Approved source m aterial may from t ir e to tim e be
c a lle d t o the a tte n tio n o f teach ers by school department o f fic e r s * * ..
No m aterial sh a ll be approved which i s u n s c ie n tific in statement or
emphasis* or which i s ed u cation ally unsound in i t s approach or
m»•*»
mmmmt «■*«•«*» *» «•» m «***#-
1.
Schools 1935
2#
Rules and R egulations of Spokane* Washington* Public
Sec. 116 p .24
By-laws (Revised) K noxville
Feb* 8* 1937
Sec* XVII p. 90
J
29
rp resen taiion *”^
Schools are* however, permitted to accept ou trigh t
g i f t s of equipment i n fo u r school d is t r ic t s #
Many business concerns are
more than generous in fu rn ishin g to p up ils fo r classroom use calendars*
r u le r s, and b lo tt e r s , containing some ad vertisin g m aterial*
For the
most; part the p ra ctice i s not prohibited by school o f f ic e r s , although in
some few d i s t r i c t s i t i s r e s tr ic te d to one lo c a l dealer each school
year, e*g* in l a P orte, Indiana, "Wo d istr ib u tio n of f r e e t ic k e t s , b lot*
t e r s , book covers* or other a d v ertisin g m aterial among p u p ils sh a ll be
permitted in any school or on any school premises0 by regu lation o f the
Oswego, Hew fo lk School Board*2
in te r d ic tio n s
In keeping with t h is s p ir i t i s the
"feaoher® are forbidden t o suggest t o the p up ils the
names o f d ealers from whom to purchase books or su p p lies needed in the
sch ools*”
Such use i s discouraged, because o f th e
such firm s, in D a lla s, G alveston, and Waco, f exas;
fr e e ad vertisin g of
Oshkosh, Wisconsin;
and in Oakland, C aliforn ia where i t a p p lies only to the Physical Edtw
cation Director*
Ho announcements are permitted in the sch ools o f sixty*seven of
the d i s t r i c t s studied*
la tw en ty-five of th ese d i s t r i c t s the prohibi­
tio n sp e c ifie d "the announcement of public entertainm ents*11 Charit­
able organieations are exempt in Wilmington, Delaware* P rin cip als may
so excuse o f f ic e r s o f the parent-teacher a sso c ia tio n s in In d ian ap olis,
Indiana, or 'the usual order of the superintendent may provide n ecess­
ary exemptions*
1*
Spokane* s dispensation f o i l owes
Ib id * ,
Sec* XVII2
A rt. 1110
'‘Announcements of
p. 90
2*
Buies and B egulations of Board o f Education fo r the
Government and Control of Public Sohools of Oswego 1933 p* 12
u
! entertainment s end a c t i v i t i e s -which the p rin cip al th in k s worthy o f
^
c a llin g t o the a tte n tio n of the p u p ils, may he placed on the school
b u lle tin board*”
1
The use of the schools or school assem blies by lo c a l and other
speakers for the purpose o f making addresses is prohibited in thirty**
three d is t r i c t s except in those ca ses ’’-where the addresses are h elp fu l
to p u p ils and teachers in g e ttin g a b e tte r understanding o f the prob©■
lama in the educational programs*”
Such addresses, a s those given by
lo c a l firemen on f i r e prevention and those given by lo c a l p o lic e o f f ic e
e rs on s a fe ty , are u su a lly considered of s u ffic ie n t b e n e fit to allow
th e ir being given in -the schools*
P a rticip a tio n or co-operation o f
teaohers and p u p ils in programs or campaigns that encourage proper
a ttitu d e s and h a b its in c i v i c , p a t r io t ic , and general w elfare are
u su a lly permitted i f and when approved by the superintendents*
E v a n sv ille , Indiana
requires one month1s advance n o tic e in such cases*
W riting e ssa y s, or making p osters for p r is e s , under a teach er’ s
d ir e c tio n , i s prohibited in the reg u la tio n s o f twelve d is t r ic t s because
o f th e lo s s o f tim e in volved , th e tendency to encourage cheating or
m isrepresentation, the lack of appeal to a m ajority of a c la s s , and the
seeming school approval o f the firm concerned w ith the prige contest*
Such proh ib ition does n o t, however, prevent p u p ils ’s seeking a teacher1s
h elp for th e ir in d ividu al p a rtic ip a tio n in the contest*
In th ree
d i s t r i c t s , sp e cia l permission of the school o f fic e r may make such use
mm * * ~
* * # » m m m mm mm-mmmm** .
i* Buies and le g isla tio n s » Spokane Washington Public
Schools 1935 See* 116 p* 24
1929
2*
pp*
Buies and Regulations of Board of Education -* La Porte
16-7
at
^ p ossib le*
In L0 3 Angeles two a r t and two lit e r a r y c o n te sts may be
p a rticip a ted In daring each seme ©ter*.
n
Oakland r o le s make I t p o ssib le
fo r the g*0 *T*O* w a its to a ccep t such awards as are approved by the
superintendent*
Furnishing l i s t s o f p u p ils** parents.'** or teachers* names or
addresses to anyone i s prohibited in p r a c tic a lly a l l d i s t r i c t s by custom
or unwritten- la w but s p e c if ic a lly mentioned l a only forty* e ig h t o f th e
d i s t r i c t s studied*
f a t here too m exception i s p e m itte d to be made
in th e c a se of 'graduates* names*, (upon payment o f f i f t y c e n ts l a
Atlanta* Georgia) or upon the ©uperlntendeot* © w ritten consent* or the
consent o f the school board*
l i s t s for the purpose o f school a c t iv it y
la s are* of course* exempt*
The Cleveland Board** regu lation s a ls o ban the giv in g o f lis t s *
but as th e reason therefor specify* "when such census* d ir e c t ly or
in c id en ta lly * i s designed t o c la s s if y such p u p ils a s to race* color*
or the r e lig io n s b e l i e f o f th e ir parents***
The usual reason for pro­
h ib itin g the school from supplying such l i s t s o f asm s* Is t h a t unscrupulous promoters o f 'Special gadgets* devices*, books*, etc** commer­
c i a l i s e the school* s same m& reso rt to u n ethical p ra ctices to fo rce
the g a le o f th e ir p a rticu la r products*
The San Diego and Santa
Barbara reg u la tio n s make i t d iscretion ary with the p rin cip a l to per­
m it o f f ic e r s of th e ?«¥*&* to obtain names -and addresses fo r organi­
sa tio n purposes#*
f e l lo e o f f ic e r s end Other properly co n stitu ted
1* A dm inistrative Code o f Board o f Education o f City School
D is t r ic t o f Cleveland duly 1* 1928 Chap* % Sec* 302 p# 38
1938
2* A&slni s t r a t i w- Code of San Diego C ity Schools
Art* I I Sec* 20 U
Oct* If*
32
n & uthoritles are a ls o exempt from th is in te r d ic tio n .
The Minneapolis d i s t r ic t i s the only one which p ro h ib its "vot­
ing c o n te sts in connection with the public schools and the oandidacy
3
in any voting co n test of any Board of Education employee."
Itin er a n t photographers, who seek permission to photograph the
in d ivid u al p u p ils of a sch ool, and who promise a sm all percentage of
the income from s a le s , are a temptation to school p rin cip a ls In d is ­
t r i c t s where such p ra ctice i s not forbidden by school board regula­
tion*
The number o f d i s t r i c t s s p e c if ic a lly p roh ib itin g such p ra ctice
i s , however, only th irty-tw o; but in such ca ses provision I s u su ally
made for perm itting a sin g le c la s s photo, p ictu res for the sen ior
year book, group p ic tu r e s, team pictu res}
tendent* s consent in sp e c ia l oases*
or obtaining the superin­
Photographing of any o f the
sch o o l’ s a c t i v i t i e s i s forbidden in Hew York City except with sp ecia l
permission*
Motion p ic tu r e s of the school a c t i v i t i e s may be taken
o cca sio n a lly in Los Angeles, C aliforn ia}
K noxville, Tennessee; and
Milwaukee, Wisconsin*
h very general "no ad vertisin g fo r any purpose" i s the ru le
o f t h ir t y - f iv e d is t r ic t s *
th e usual exemption with permission of the
superintendent or o f the board i s a ls o provided*
This concludes a
rather comprehensive l i s t of a c t i v i t i e s which, because o f th e ir
a d v ertisin g nature, are forbidden in the schools*
In case® of
emergency, or when unusual circum stances p r e v a il, th e school tru stee
or superintendent i s u su a lly a b le to find le g a l J u s tific a tio n for
3* M inneapolis Bub H o Schools - Charter Rules and
R egulations c 13 - p* 38
i_
J
rthe exception he f e e l s I t imperative to make#
One new form o f adver- n
tis ittg i s mentioned in two school d i s t r i c t s studied, but i t i s s u f f i­
c ie n tly d is t in c tiv e to warrant sp e c ia l treatment*
vm of nm m
Only one school d i s t r i c t , K noxville, Tennessee bans commercial
radio programs*
MThe use o f any commercial radio program which i s so
announced or so t i t l e d as to gain *good w i l l 1 fo r i t s sponsor, or
which a d v er tises a sponsor*e wares, sh a ll not be allowed*
1
passages s h a ll be turned low by th e teacher*’1
A dvertising
Such a ban i s doubtless
im plied, however, in the reg u la tio n s of E v a n sv ille, Indiana which pro-*
v id e , ’’The school radio may not be used to bring in any programs other
than those designated as ed ucation al, except with th e consent o f the
Superintendent*”
That only two school d is t r ic t s sensed a n e c e ssity
fo r mentioning t h is use does not surp rise one when i t i s r e a lise d th a t
the use of radio in th e schools i s s t i l l in i t s early stages*
SALES
Sales t o p u p ils and teachers sure, as previously mentioned,
q u ite g en erally prohibited in school buildings*
v a riou sly applied*
The tern ’’s a le s ” is
In th irty -sev en d i s t r i c t s ’’s o lic it in g for any pur­
pose” i s d e f in it e ly proscribed*
The seme number ru le out ”t i e k e t - s e l l ­
ing”! but th ir te e n o f th ese exempt from t h is ban school a c t i v it i e s !
1*
By-Laws (Eevi m d ) K noxville Feb* 8, 1937 Bee* XVIII Buie 4
p. 90
2* Handbook o f th e Public S chools, E v a n sv ille, Sept* 1938
Sec* 121 p* 62
|_twenty-niu© ban "canvassing” and thro© “s a le s on th© s tr e e t by
1
pu p ils*” Other regu lation s concern th e sale o f m ilk ,sa le o f , or sub­
scrip tio n to , magazines, sal© of candy, etc*
th e few s ta te school
codes which tr e a t t h is phase of the subject contain enactments o f r e la ­
t iv e ly recent dates*
The S ta tu tes
The Arizona code s p e c if ic a lly “p ro h ib its teachers
and school o f f ic e r s from a ctin g as agents fo r any author, b o o k seller,
publisher **• to introduce any book, apparatus, fu rn itu re • •* in to th©
public sch o o ls o f the d is t r ic t * ”2' The Attorney General, in givin g h is
opinion to th e Superintendent of Schools of Douglas, in terpreted t h is
sta tu te to preclude a school tru stee from s e llin g school supplies and
apparatus to th© school d is t r ic t .^
Th® Iowa School law decrees i t
“unlawful fo r any school d irecto r, teacher, or member of the board to
a ct as agent for any school t e x t books or school su p p lies **•♦“
In
a case brought before th© court for adjudication t h is sta tu te was
Interpreted to p roh ib it a school d irecto r from engaging on h is own
account in the sa le of school books and supp lies to the p u p ils, and not.
to tie lim ited to p roh ib it d irecto rs aotiag a s agents o f the board.4
That th ese mandates are few in number i s rea d ily understood;
when on©
r e a liz e s that in nearly every s ta te , books, su p p lies, and equipment
are purchased by th e school boards#
In nearly every sta te such board
member® are prohibited from acting as “agents”*
Th© referen ce h ere,
I*
School haws o f Arizona fo r 1931
Art VI
Sec*1037
2*
Ib id *, Attorney General1s Opinions Oct* 3, 1929
3*
The School haws of the S ta te o f Iowa 1935
4*
130 Iowa 31 S tate
p* 71
p* 154
Chap* 231 Seo#44S8
p* 275
v Wick March 6, 1906.
,
3S
rhowever, i s not t o an i l l e g a l us© o f the school b uild ing but rather t o 1
an abuse of public o ffic e *
”No b u lle t in , o ircu la r or other pub lication o f any character
■whose purpose i s • • • to fo s te r membership in , or subscription t o , the
funds of any organ isation not d ir e c tly under the control o f the school
a u th o r itie s •.* sh a ll be d istrib u ted or su ffer to be d istrib u ted or
shown to the p u p ils of any public sch ool,
[In the sta te o f C alifornia 1
on the school prem ises during school hours or w ith in one hour before
the time of the opening or w ithin one hour a fte r the tim e o f the c lo s ­
ing o f such schools* nor s h a ll p u p ils of the public sohools be s o l i c i t ­
ed by teachers or oth ers to subscribe to th© funds o f , or work fo r , any
organ isation not d ir e c tly under th© control o f the school a u th o r itie s
• . * * ttl
The sta tu te o f Missouri provides, llHo agent, s o lic it o r , peddler
or other such person sh a ll s o l i c i t , o ffe r fo r s a le , or s e l l . • . to any
teacher or pupil in any p u blic school house of the s ta te
one h a lf
hour before the opening or one h a lf hour a fte r the c lo sin g of the
sessio n * 11^
She Nebraska
Code makes i t unlawful, "for any peddler,
agent, salesman, or rep resen tative o f any commercial en terp rise .
to
c a l l upon, s o l i c i t orders, secure con tracts #•* from any classroom
teach er, w hile said teacher i s a c tu a lly engaged in th e pursuit of h is
or her work as such.1*
The sta tu te s further am plify the l a s t clause
to mean ^between th e hours o f 8? 30 A M . and 0*00 P*M*, on a l l days
«*;nhp» *fi «* m <iea*'<*■>
'I*
Sec* 3*S3
2,
w* m - m
School Code - S ta te of C aliforn ia 1937 - Chap* IV Art* II
p. IS l
State o f Missouri Eevised School laws - 1933 S ec*9270 p. 33
J
i~o& which th e sch ool, in which he or die i s teach in g, i s in sessio n * ”^”1
The Ohio sta te L egislatu re p la ces the burden o f r e s p o n s ib ility fo r the
©nforcement o f a law on t h i s su b ject, under the ju r is d ic tio n o f the
s>
State Department o f Education*
In Oregon, wNo teacher employed under or in connection with the
p ublic sohools Of any d i s t r i c t , or any other person sh a ll s o l i c i t or
re ce iv e or p e m it t o be s o lic it e d or received on any publio school
premises any su b scrip tion or donation o f money or anything o f value
from p u p ils
d ire cto rs# ”®
fo r any purpose except such a s may be authorised by the
’’Excepting under au th orisation of the State Board of
Education, (in Rhode Island |
or ru les and regu lation s ##* of the
School Committee #.» no teacher employed in any public school for any
purpose whatsoever, sh a ll s o l i c i t , exact or receiv e from any pupil • * #
any contribution or g i f t o f money or any a r t ic le of valu e or any
pledge #** s e l l or o ffe r fo r s a le any a r t ic le to public school p up ils
or teach ers •#• or s e l l through the agency of any p u p ils »•• nor
s h a ll teachers s o l i c i t or receiv e su b scrip tion s fo r any newspaper,
p erio d ica l or magazine . . . nor d istr ib u te through or in th e public
sch ools or to ch ild ren on th e ir way to or from school any c ir c u la r ,
sample package, coupon, t ic k e t , or other sim ilar ad vertisin g matter#”^
In South Dakota, a sta tu te makes ”i t unlawful for any agent or s o l i c i t ­
or to en ter any rural school or school grounds between the hours of
1, Nebraska School Laws
1935-6 Sec# 79 - 2133 p« 176
2* Ohio School Laws 1934 Chap# 10 See# 4762 - 1
3. Oregon Schools taws 1931
p* 209
Chap, XXI? Sec* 36 - 3501 p# 141
4# taws o f Rhode Island R elating to Education *» 1929
Supplement Chap# 77 Sec# 10
57
r e ig h t o 'clo ck A.M. and f iv e o'clo ck P. M. during any school day fo r
”1
the purpose of s e llin g to* or s o lic it in g from, any teach er therein
fo r present or future d eliv ery any goods* wares, merchandise or in ­
surance
M innesota's a c t provides*
"Mo person sh a ll o ffe r for
s a le or peddle any goods, wares, books, newspapers, magazines «. • or
any other thing i&at soever or canvass or take orders . . . in any public
school b u ild in g .* .s provided t h is a ct s h a ll not be construed a s pro­
h ib itin g . . . or making such s a le to th e school board or any member
th ereof**.." ^
Board Regulations
S ales of any kind a re, a s the unusually
large number of p ro h ib itio n s in d ic a te s , a grave source of concern to
school o f f ic e r s .
The storing of m aterial to be so ld , the secretin g
and banking o f the money received from the s a le , the lo ss involved by
errors in making change and by the time spent in making the s a le , and
the tem ptation t o r e so r t to coercive p ra ctices to boost the sa le s and
thus a tta in the d esired end are problems which fa r outweigh any
p o ssib le good d erived.
This regu lation i s so strin gen t th at in Spokane
a sp e c ia l regu lation provides*
"Principals w i l l have charge of the
s a le of m ilk to chllrden and the d istr ib u tio n of free milk to indigent
children .
*
.
Brunswick and P a ssa ic, Mew Jersey sch ools "are re­
quired to se e th at the ja n ito r perm its no person to s e l l candy, cakes*. .
1* The Public School laws of South Dakota - 1937 T itle V
Sec. 158 p . 92
A rt. 1
2.
Chap VI
1935
i
Laws of Minnesota d ela tin g to the Public School system
Sec. 230 p. 62
3. B uies and E egulatione - Spokane, Washington Public Schools Sec. 79 p. 16
J
38
1 in sid e the school yard or on the sidewalk o f the school property to
school children
which prohibits#
“1
Ih hew York City there i s a sp e c ia l regulation
"the sa le o f su p p lies or m aterial in connection with a
School F ield Day without perm ission o f the Superintendent o f S ch ools.”
The s a le o f garden seed# candy# magazines, or other a r t ic le s by
the p u p ils or the teach ers for the purpose o f r a isin g money fo r the
school or for any other purpose# i s an a c t iv it y which is almost uniform**
ly banned# being mentioned in many d i s t r i c t regulations*
In extreme
cases the perm ission of the superintendent w ill serve to make such
p ra ctice p ossib le*
to the p u p ils in
Teachers are not permitted t o s e l l t e x t s or sup p lies
twenty d is tr ic ts * Fourteen d is t r i c t s p roh ib it th eir
a ctin g a s agents for any business*
The d i s t r i c t s of Everett and Spokane# Washington
are unique in
the ru le which fo rb id s "schools r a isin g money fo r any purpose by means
o f pupils* s o li c i t i n g the public for money except as t h e Board may
authorize i t * ”^
"Nothing i s t o be offered fo r s a le on the prem isesw
in th ir ty -n in e of the d is t r ic t s *
"Canvassing or campaigning for any
purpose" i s prohibited in twenty-nine of th ese d is t r ic t s *
The use of
1* Rules end Regulations of Board o f Education - Norwalk#
Connecticut 1933 Art* IV Sec* 12 p* IT
Rules and R egulations of Board of Education - New
Brunswick# New J ersey 1928 Art* II Paragraph 12 p* 29
Manual o f Board o f Education# Passaic# New Jersey 1933 p*37
2* By-Laws o f the Board o f Education of th e City of New York
March 9# 1927 Sec. 87 Paragraph 42
3* Rules and Regulations o f the Spokane Washington public
Schools 1935 Sec. 118 p* 24
Rules and R egulations o f the Everett Public Schools
(Revised 1936) A rt. VI Sec* 4 p* 16
J
r the building during school hours by agents fo r any purpose 1$ banned “1
In f iv e d is t r ic t s *
Salesmen* agents and s o lic it o r s are not permitted
to tra n sa ct b u sin ess with teach ers in the b u ild in gs in six ty -th ree d is ­
t r ic ts *
The d i f f i c u l t y of enforcing such absolute p roh ib ition s i s
evidenced by the exceptions made, fo r example, in Burlington, Vermont,
"School ch ild ren s h a ll not canvass nor s o l i c i t fo r the s a le of t ic k e t s
to the public except for entertainm ents th ioh are given by the school
which the pupil a tten d s and only when the proceeds are for the b en efit
o f th a t school*
t ic k e t s fo r entertainm ents, by other sch ools or by
ou tsid e organ isation s fo r ch aritable or c iv ic purposes, may be placed
in th e sohools fo r sale to th e pupils#
But p u p ils must not be urged
to buy, and t ic k e ts must not be sold during sohool hours*"*
Sim ilar­
ly , rep resen ta tiv es from the p ub lish ers of regular classroom te x t books
are exempt from the ban on agents In th is d i s t r i c t , in E verett,
Washington, and in P h ilad elp h ia, Pennsylvania* In the l a s t mentioned,
however* the Secretary and Business Manager i s required to issu e
o f f i c i a l cards to accredited agents fo r use during the months o f A p ril,
May, October, and lovember*
T his e n tir e sub ject of s a le s , a g en ts, s o lic ito r s * e tc * , is
adequately covered in one sectio n of Hie Minneapolis regu lation s*
"Bo agen t, s o l i c i t o r , c o lle c to r or other person s h a ll be allowed to
take any time or a tte n tio n o f any pupil or Board of Education employee*
during school or o f f ic e hours, t o a d v e r tise , e x h ib it, promote or s e l l
any a r t io le or bu sin ess p rop osition , in any school or o f f i c e , or on
** *»mm-
e e '«*«*
1« Rules and Regulations o f the Board o f Sohool Commissioners
O ot. 1, 1028 Chap. V 890. 18 p. 11
40
nany sohool property, except to those employees authorised by the Board
o f Education to make or recommend purchases.
Nor sh a ll any agent he
perm itted to s e l l to teachers in school b u ild in g s any a r t ic le whatso*
ev er, or to s o l i c i t tea ch ers to buy insurance, bonds, or to make any
kind of investment*
B usiness with teachers must be done ou tside o f
1
the sohool bu ild in gs*■*
th e r a isin g of money by p u p ils, and the acceptance o f con tri­
butions of money fo r any purpose i s almost u n iv ersa lly forbidden in
p r a c tic e , y e t s p e c if ic a lly banned in only eighty*two of the d i s t r i c t
regu lation s studied*
$ ie very general ”no other commercial uses* o f
the Fort Smith, "Arkansas and Duluth, Minnesota
regu lation s would
seem to assure the success of what i s obviously attempted by school
boardst
( ! ) To have business w ith teachers and employees transacted
ou tsid e of sohools and (£) To p rotect children from an undue waste o f
th e ir tim e, in making them th e unw illing v ictim s o f s a le s promotion*
A few noted exceptions t o the commercial ban are, however,
sig n ific a n t*
P u p ils1 enrollment and p a rtic ip a tio n in Junior Bed Cross
a c t i v i t i e s (and other p a tr io tic en terp rises) are not only not for­
bidden but a c tu a lly encouraged*
Many o f the a c t i v i t i e s o f parent-
teacher a sso c ia tio n s are a lso exempt from th e aforesaid ban*
They are
freq u en tly permitted to a d v ertise th e ir groups and a c t i v i t i e s , to s e l l ,
and have sold w ith in th e classroom , t ic k e t s , t© use the p u p ils and
pupil d ir e c to r ie s fo r the purpose of en r o llin g th e ir parents, and to
a s s i s t or carry on the pupil lunchrooms*
1935
LJ
In some few d is t r ic t s the
1* M inneapolis Public Sohools - Charter t u le s and Regulations C 13 p* 5B
J
41
f~tim© allowed, suoh organ isations and th© methods proscribed fo r th e ir
use are extrem ely d eta iled #
H
Th© d i f f i c u l t i e s , encountered In formulate
lag a s e t of r u le s which w ill prevent the sch o o l1s taking on the a sp ects
o f a m ercantile estab lish m ent, y e t permit i t to carry out th© work of
education e f f e c t i v e l y , can b est be appreciated by a study of the follow#
ing rule*
,tfh ese ru les fo r the .• • government of th e schools#** are
to be Interpreted by the superintendent of schools* who sh a ll make such
regu lation s and give such d ir e c tio n s fo r th e operation of th e ru les as
are deemed necessary* which regu lation s and d irectio n s may be changed
by him from tim e to time* the b ette r to carry out the requirements of
th© rules*
The superin ten d en i, s in terp reta tio n s h a ll be f i n a l , except
I
in ca se o f appeal to th© Board o f Sdueationu*'
’*'Entertainments” in the school b u ild in g are a frequent source
o f controversy*
These entertainm ents are sometimes produced by sohool
ta le n t and more freq u en tly by non-sohool ta le n t for the purpose of
r a isin g money to supplement th e o ffe r in g s furnished by public funds*
This i s prohibited in Albany and Oswego, Hew fork and lim ited in
Oshkosh and West A l l i s , .W isconsin* In Hew York C ity th e number o f
such entertainm ents (or e x h ib itio n s) where admission i s charged i t
lim ited t o one per tern and then, only with the permission of the
a sso c ia te superintendent in charge*
Exceptions to t h is ru le are not
1* Minneapolis Public Schools - Charter Rules and
R egulations 1033 Rule 30 p* 61
J
npermitt©d u n less the Superintendent of Schools so decides*^
The
“1
Spokane* Washington reg u la tion s permit th e g iv in g of on© "pay entertain*
ment* ©aoh semester*2
The regu lations o f E v erett, Washington are the
most d eta iled on t h is subject#
They provide* "For the purpose of c rea t-
la g a fund fo r books, pictures* v isu a l education equipment* a t h le t ic
supplies* e tc * * each sohool may g iv e *pay assem b lies1 or entertainm ents
•which p u p ils attend during school hours* to which the t o t a l admission
charge sh a ll
not be more than tw en ty -fiv e cen ts each semester*
Such
entertainm ents s h a ll b© planned and given with as l i t t l e in tru sion
upon the time and en ergies o f p u p ils and teach ers a s p ossib le#
If
ou tsid e ta le n t i s used* such entertainm ent must have an unquestion­
able educational value*
P u pils s h a ll not be required to attend such
paid entertainm ents, nor mad© t o f e e l uncomfortable because they can•3
not afford to do so*11
The M inneapolis regu lation s ban p a r tie s or
paid entertainm ents during sohool hours*^
Five d i s t r i c t s prohibit
sohool f e s t i v a l s or concerts*
The Rutland (Vermont) ru les do not p roh ib it entertainm ents but
they do forbid "teachers giving n o tic e in the schools o f any en ter­
tainment not connected w ith the schools**.# This sectio n s h a ll not be
construed a s p roh ib itin g teach ers from d iscu ssin g w ith th e ir pupils
1* By-Laws o f the Board of Education o f the C ity of Mew fork
March 9* 1927 Sec* 67 p* 20 and p* 103
1936
2* Rules and R egulations o f Spokane* Washington Public Schools
See* 82 p* 17
1936)
3* Rules and R egulations of Everett public schools (Revised
Sec* 30 p# 13
1933
M inneapolis Public Schools * Charter Rules and Regulations
Rule 27 Paragraph 4 p* 61
43
r entertainm ents of sp e cia l m erit 'which may he a v a ila b le fo r th e ir in** ^
siruction*"^
Sixteen d i s t r ic t s require that plans fo r school en ter-
tailaments be authorised by the superintendent*
P rin cip a ls of the Hot
Springs, Arkansas sch o o ls are not perm itted to have any public program
or entertainment in th e schools without f i r s t securing the consent of
the Superintendent and Board of Education*^
Teachers o f Woodbridge,
Hew je r se y are forbidden nto announce in any manner any public enter**
taiament u n less authorised by the Board;* but public school entertain**
ments are an excep tion to th is rule*®
Many of the sixty#*seven d is­
t r i o t s , previou sly mentioned a s banning announcements, in clu d e, in
th ese in te r d ic ts* announcements of entertainments*
Twenty d is t r io t s
s p e c if ic a lly proscribe entertainm ents in school} some lim it the
number* others the purpose* end s t i l l others the character* of th ese
entertainm ents* The appended ta b le in d ica tes the varied u ses banned
or permitted in the sohool d i s t r i c t s studied*
These regulations* how­
ev er, are the su b ject of l e g is la t iv e mandate in only ten sta tes*
In
a l l other cases a ctio n has been taken by lo c a l school boards*
Such i s not the case* however* with a second group o f a c t i v i ­
t i e s freq u en tly a lleg ed a ’‘commercial use” o f the schools*
The
referen ce here Is to the use of the sch ools by groups of students*
freq u en tly known as ” Stydent-Qrganications”,
1*
Rutland
VII
"General O rganisations”,
Buies and R egulations o f the Board o f school CommissionersJune 1937 Chap* III Sec* 14 p* &
2* p o l i c i e s of the Hot Springs City Schools - May 1938 Art*
Sec* 13
3 . Buies and Begulations o f th e Board o f Education of
Woodbridge Township 1928 Rule 6 p* 11
<
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S h a ll n o t d is c u s s b u s in e s s p ro p o s itio n s w ith c te a c h e r s -o r- p u p ils
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I n d i v i d u a l p i c t u r e s o f S r . H ig h p u p i l s Q .K . i f n e e d e d f o r p u b l i c a t i o n s
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A lso to bo inoXuded l a t h is group are
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those a c t i v i t i e s which the cou rts have described as " in cid en tal to and
necessary f o r oarrying on the leg itim a te work of the curriculum#"
In t h i s connection S ection 155 o f the Oklahoma sta tu te s has been
amended to "authorise them to maintain and operate a complete public
school system of such character as the Board o f Education sh a ll deem
b est su ited t o the needs o f the school d i s t r ic t s ! to provide, #ien
deemed advisable# c a fe te r ia s or other ea tin g accommodations}
t h r if t
banks or »♦♦ fo r the teaching and p ractice of t h r if t and economy}
bookstore si
p rin t shops} to incur a l l expenses **• necessary «•• and
e x e r c ise sole con trol over • ** a l l th e school property of the d istr ic t* " *
A "complete public school system1" has not y et been j u d ic ia lly defined*
The only pertinent case reaching the courts for adjudication was that
brought by a taxpayer p ro testin g th e purchase o f b a sk et-b a ll equip*
ment and a t h le t ic supplies*
th e court upheld the taxpayer because no
appropriation had been made by the e x c is e board fo r th e purchase o f
the equipment*
No e le c tio n had been held in th e said school d i s t r i c t
fo r th e , purpose of exceeding the indebtedness provided by the e x c ise
board fo r the f i s c a l yea r.
SCHOOL CAFETERIAS
The S ta tu tes
Oklahoma I s , however, not the only sta te to
extend the scope of sohool a c t iv it ie s *
1*
Sohool Laws of Oklahoma
One such a c t iv it y , resented
1957
Art* IV Sec* 155
p* 45
S* 169 Okie 410 Union Grades Sohool d i s t r i c t No* 5 Creek
County v Ford October 50, 1954
_!
by business men because o f it* a a lle g e d ly commercial nature, i s the
various m akeshifts fo r lunch**getting purposes#
school c a fe te r ia s are
authorised by sta tu te in Pennsylvania, "whenever the Board o f Sohool
D irectors in any sohool d i s t r ic t s h a ll, in i t s judgment deem i t advis­
able t o do so , and when the food served sh a ll fee sold to p u p ils,
teach ers, and school employees o f th© c a fe te r ia , a t such p rice a s w ill
not m a teria lly exceed the cost ♦ .*" ,*
i n Colorado "in any sohool
d i s t r i c t of the f i r s t or second c la ss in the d isc r e tio n o f the board
of education or high-sohool committee and upon au th orisation by a vote
o f the e le c to r s in any other school d i s t r i c t
in Hew Jersey,
wc a fe te r ia s Or other agencies for dispensing food s to public school
p u p ils without p r o fit «#• a s in i t s judgment w ill a id in the preserva3
tio n and promotion o f th© h ealth of the p u p ils ,n and in Nevada
(dining h a lls ) to be provided (by im p lication in connection with
dorm itories fo r high school students) supported, maintained and manag­
ed fey th e county board of education#^
the C aliforn ia cod© makes
the operation o f c a fe te r ia s mandatory "upon
sch o o l
tr u ste e s and c it y
boards o f education *#* whenever in t h e ir judgment i t i s advisable
to do s o . "
The s ta te board of Delaware provides f a c i l i t i e s there­
5
fo r , but req u lresth at th ese c a fe te r ia s be s e lf sustaining# 6
tti* mu#P
*» m
«tf*m *»
in
mum
1#
The School Laws o f Pennsylvania 19&S Art# IV Sec# 401 pp.33-4
2#
School Laws of S tate of Colorado 1033 Sec# 345
3*
New Jersey School Laws 1938
4*
The School Code - S tate o f Nevada 1935 Sec* 5829 p# 72
6
p# 165
Chap* XI Sec* 18*11-14
p* 94
# Sohool Code S ta te of C alifornia 1937 Div# 71 Pt#II Chap. VI
p . 359
6 *
Department o f Public In stru ctio n Delaware 1929 (Handbook for
Guidance o f School T rustees and Teachers) Sec* VIII p# 2 pp. 13-4
L_
-i
49
Indiana i f "the board o f school commissi oners b e lie v e s th a t i t would
^
tend to promote th© h ealth of school children and thereby advance the
educational work of the school * 11 i t i s empowered to e s ta b lis h kitchens
and lunch rooms for the serving of luncheons to p u p ils, paying the
expense o f operation, as fa r a s p racticab le from the p rofits*^ "Neces­
sary apparatus and ap p lian ces to purchase the necessary food . . . to
s e l l luncheon to children attending the sc h o o l," i s the Mlssourl
Mandate*^
Ohio school d i s t r i c t s , except county school d istricts," m ay
provide f a c i l i t i e s . . . fo r th e preparation and serving of lunches to
the p u p ils, te a c h e r s, and other employees th erein ," but not fo r profit*
"No board of education, p rin cip a l, teach er, or c la s s organ isation w i l l
be permitted to s e ll# * , food, can d les, or lik e su p p lies for p r o fit on
the school premises nor ou tsid e the school bu ilding except when the
p r o fit .« • Is to be used fo r school purposes or for an a c t iv it y in
connection w ith the sch o o l **1 the enforcement of t h is law in t h is sta te
i s placed under the J u risd ictio n of the State department of Education*^
the d i s t r i c t o f Chicago, I l l i n o i s
has power to furnish lunches to the
p u p ils attending and t o make reasonable charges therefor*^
In f i r s t
c la s s Washington d i s t r io t s , d irecto rs are permitted to e s ta b lish and
operate lunchrooms in the sohool b u ild in g s for p u p ils and teachers}
provided the actual operating expensea, Including the c o s t o f food
su p p lie s, does not exceed the revenue from the sal© of lunch© s in any
1*
2
School Laws of Indiana
Ghap. XIV Sec* 64&*6
p*256
* S ta te o f M issouri Eevised Sohool Law© 1933 Seo*9206
p* 10
3* Ohio School Laws 1934
1936
Chap, 10 Sec* 4762 - 1 pp. 208-9
4* Th© School Law of I l l i n o i s 1936 Sec* 136
i—
p. 87
J
fsohool year.
1
The school committees of Massachusetts are permitted nt©l
prepare and s e l l lunches **♦ fo r the p u p ils and teach ers a t such p rices
a s i t may deem reason ab le.1*
In a sta tu te p roh ibiting s a le s in the
school b u ild in g s in the S ta te of Rhode Island may be found authorizetio n in t h is phrase “excepting the s a le s of school lunches under ru les
*
and reg u la tio n s prescribed by the school committee.”
Any board of
education in Connecticut^ may provide, and in Wisconsin®
s h a ll have
power to fu rn ish , lunches served a t cost to teach ers and children*
In
f i r s t c la s s d i s t r i c t s in Michigan the “board may s e l l meals to the
p u p ils d ir e c tly but n ot a t a lo s s to the d is t r i c t or i t may make a
oontraot fo r t h is p r iv ile g e fo r a period of not more than three years . "
the S tate Board of Education o f Vermont “i s authorised to reimburse
to m and incorporate school d is t r io t s and c i t i e s to an amount not to
exceed f i f t y per cent o f th e amount expended •*• in in s t a llin g equip­
ment and f a c i l i t i e s fo r fu rnishing lunches t o th e p u p ils of th e public
schools when so ordered by a vote o f the school directors*"
F in a lly
m mtmmmm m>« » « * • «M ******
#*>**•#!*
1* Laws r ela tin g to Public Schools and School I n te r e s ts Washington (Amendments 1926*31} Ghap* 60 p. 4
2* General Laws R elating to Education * M assachusetts 1932
Ghap* 71 Sec* 72 p# 27
V
3* Laws o f Rhode Island R elating to Education 1929 Supplement
Ghap* 77 Sec* 10 p* 9
4#Corneetieut School Document #2 - 1935
Chap V Sec* 92
p*4l
6 *
Laws o f Wisconsin R elating to Common ^Schools 1936 Chap* 40
Sec* 40-53 p* 607
6 #
General School Laws - S ta te o f Michigan 1936- Chap. V
Sec* 7424-6 p* 105
1935
7* Public Laws o f the S tate of Vermont R elating to Education
Ghap* 178 Sec* 4272 p. 27
6
si
Those boards of education, in union fro # school d is t r io t s o f Sew York,
"have the power and the duty, when so authorised, to provide, m aintain,
and operate a c a fe te r ia or restau rant service fo r the use o f pu p ils and
teachers w hile a t sch o o l, provided, however, th at *♦., provision s h a ll
be made for making such c a fe te r ia or restau rant serv ice self-su p p o rtlo g . ”
The Education law a lso makes I t the duty of the c it y boards
1
of education "to perform any duty imposed upon boards of education or
tr u ste e s o f common schools under t h is chapter or other s ta tu te s ***»"
th e fo llo w in g ta b le summarises th e mandates o f the nineteen
s t a t e s le g a lis in g th e operation of school lunchrooms, school c a fe te r ia s ,
or school m akeshifts fo r lu n ch -gettin g purposes#
th e business man*a con­
ten tio n i s th a t he i s deprived o f the p o s s ib ilit y of earning a liv in g
by the s a le of lig h t lunches to pupils*
The school*# argument i s that
few i f any e stab lin im en ts are equipped to serve such large numbers of
p u p ils w ith in the a llo tt e d timej nor i s i t fe a s ib le when the tempta­
tio n to remain out of school for the afternoon i s so great*
The in ­
crease in the number o f ce n tr a lise d or con solid ated sch o o ls, with th e
consequent decrease in the number o f one-room schools has resu lted in
p u p ils attending sch ools a t great d ista n ces from th e ir homes*
The
" ca feter ia situ ation " which has grown out of these con d ition s Is
aggravated, as Is the general su b ject of non-school u se, by th e tr e ­
mendous increase in high school attendance*
The problem i s such th at
the courts have been appealed to fo r adjudication*
Court D ecisions
L_'
In the case brought before the Louisiana
1,
Education Law 1934
3*
Ib id *,
Sec*
868
Art* XI
Sec* 310 Paragraph 22 p# 114
p# 259
J
Table XX
S ta S S S on the CAFETERIAS
whenever th e Board deems i t advisable
iChen authorised by vote of tb s e le c to rs
Required by S tatu te
Perm itted by S tatu te
J u d ic ia l D ecisions rendered
1.'
2.
3.
4.
Xu
d i s t r i c t s o f f i r s t and second e la w
In o th e r than f i r s t and second c la s s d is tr i c ts
S ta te Board provides f a c i l i t i e s
In
Union Free School D is tr ic ts aid C itie s
s*
*»
?•
F.
Except County Sebool D is tr ic ts
Limited to Chicago
In f i r s t c la s s d is tr i c ts
In d ic ates a favorable decision
S3
1
Courts* a taxpayer protested beoause the sohool hoard allowed two
~
ja n itr e s s e s to s e l l luncheon and com estibles to the teachers and pupils
during lunch hours a t a small p ro fit*
He maintained an establishm ent
near th e school w hile they (th e ja n itr e s s e s ) paid the school d i s t r i c t
no ren t for t h i s use o f the building*
the school board rep lied th a t
t h is plan saved the teach ers and students from unnecessary exposure
during Inclement weather*
In affirm ing the d ecisio n o f the lower court,
the court held that* TThis use was only in cid en ta l t o the I n te r e s t of
the safe* sanitary* and e f f ic i e n t conduct o f th e schools and th a t i s
not an unlawful use o f said b u ild in g s under such circum stances*w^
In ruling on t h is case the court reviewed the Sugar v Monroe
case which had been s e t t le d twenty-three years previous and to which
9
the court had been cited *
but fa ile d to see s u f f ic ie n t ly sim ilar
elem ents t o be bound by th e precedent*
seven years later* however*
another " ca feteria ca se1* was brought t o the courts* in which case* the
sohool board had leased to o u tsid ers school grounds* on which a b u ild ­
ing was to be erected "for the purpose of conducting a o a fe te r ia , for
the sp e c ia l b e n e fit of p u p ils and teach ers in connection w ith school*
under th eir supervision***
The court ruled* “Bower and au th ority o f
the school board to have opened and conducted a c a fe te r ia on th e school
grounds fo r the serv ice and convenience *■#* i s not the question in­
volved in th© present case*
19£S
1*
Jjj?
???
104 So 490
2*
the question i s whether the school board
Ralph v
*
Orleans Parish School Board May 25,
Isadora Samuel & Sugar v C ity of Monro© e t a l
dune 16* 1902
L-
_j
54
f has authority to lea se the sohool property and d iv e s t themselves o f
T
1
oon trol thereover as was done*”
Since by lea se the sohool hoard could
not resume i t s au thority for the ten year period and sin c e the use was
not i n c i d e n t a l to th e in te r e s t • ♦*," an inju nction was granted and a
rehearing denied*
In th e c i t y of St* Louis* Missouri* the school d i s t r i c t operated
a lunchroom* whereupon one Krueger sued fo r personal in ju r ie s caused
therein*
In denying h is p lea the court m aintained, ”A sohool d is t r i c t
v o lu n ta r ily undertakes to operate a lunchroom in a school b u ild in g .
under sta tu to ry a u th o rity and i s n ot compelled to do so , which does not
2
make i t s a c ts other than governmental*” A similar' ruling was issued
by the Ohio A ppellate court in 1936*
A s u it was brought in th e name
of a pupil who ate food, containing a foreign substance, in a school
lunchroom*
The court held th a t sin c e operating a lunchroom was
authorised by s ta tu te , and sin ce the operation o f said lunchroom
was not fo r p r o f it , nor In a purely proprietory ca p a city , no l i a 3
b l l i t y could be sustained*
Such was th e s itu a tio n in Washington*
where an employee, in the lunchroom maintained a t a school in S e a ttle ,
was injured w hile i t was being operated fo r the b e n e fit of teachers*
They were attending an in s t it u t e being conducted in th e b u ild in g by
the county superintendent w ith the perm ission o f the d is t r ic t *
same r u le was applied by the court*
, J® }^* ffjf*
139 So * 692
Feb* 8 , 1932
**
2*
St* Louis
3*
217
th#
there was no l i a b i l i t y where
P resley v Vernon Parish School Board
310 Mo# 239 Krueger v Board of Education o f City of
duly 3 0 , 1925
53 Ohio App# 38 I l i a s H* Minor V Horton e t a l dune 22, 1838
J
r the county superintendent was a mere licen see* *
“I
Another recent d ecisio n in Nebraska demonstrates th e relu ctan ce
of the courts to in te r fe r e in such matters*
A c a fe te r ia adjacent to
the school grounds was patronised by some of the p u p ils$ u n t il the
Uorth P la tte High School admini stra tio n adopted a one sessio n school
day with a tw en ty -fiv e minute luncheon period In the b u ild in g except
in the case of th o se who liv e d near the school*
th e d i s t r i c t court
held th e reg u la tio n , enforcing patronage o f the high sch ool and boy­
c o ttin g the Baffner C a feteria , u ltr a v ir e s and hence void*
Upon
appeal o f the school, d i s t r i c t , the lower court was reversed in th ese
words, ^Motives th a t prompt • •* sohool boards in ex ercisin g w ithin
reasonable lim it s , powers; committed to them In th e in te r e s ts o f the
public are immaterial*
The wisdom or expediency o f a ru le adopted
by the sohool board and th e motive prompting i t are not open to
j u d ic ia l inquiry where I t I s w ithin the ad m in istrative power of that
body.
C afeterias are recognised adjuncts to public high sch ools * .. •
Besort o f p u p ils t o public ea tin g p la ces in business d is t r io t s of a
c i t y , beyond both parental care and th e co n tro l of teach ers may mas*
the work and d efea t to some exten t the purposes of public education*•#.
A law ful reg u la tio n in th e in te r e s t# o f th e public may le sse n the
p r o fits o f p riv a te en terp rise and decrease the value of property
devoted thereto***
Such, however, was n ot the view taken by a Colorado court in
1.
2
112 Wash* 64
Smith v S e a ttle School Diet* #1 Aug*3,1920
}2. l I®™* I t l
Richard son a t a l v Brahman a t a l July 3,1983
2 4 9 N *W* 0 0 Y
H1927, before the passage o f th© aot le g a liz in g such use*
I t was
H
a lleg ed th a t a sim ilar rule had been made and th a t pupils* and through
them* th e ir parents were forbidden to trade with th e p la in t if f on penal-**
ty o f expulsion*
in t h is case the court held th at the purpose or motive
here was to injure another * I f th© ru le had been made in good f a it h
fo r th© good o f th e p u p ils and the school* the f a c t that i t injured
the p la in tif f* a business would be of no consequence#^
In another
case in t h is ©tat© th e court* however* upheld th e school d i s t r i c t in
the operation o f a school ca feteria *
During the noon hour each day
luncheon was served to students* teachers* employees and occasional
v is it o r s *
The important point in the d ecisio n -was th at although
students were n ot p e m itte d to leave the bu ilding during th at hour*
the motive prompting th e ru le was a good one* namely the promotion
o
o f health# d is c ip lin e , and good order w ithin the school*
A s u it to t e s t the le g a l it y of a r u le , p roh ib itin g students in
G loucester County from leavin g the campus between 9*00 A..M. and 3:36
P.M., was brought to the V irg in ia courts*
The sta te cou rt, in
reversin g th e d ecisio n o f th© lower cou rt, based i t s d ecisio n on the
board* s au th ority to make reasonable r u le s for proper d isc ip lin e *
There was no emphasis on the commercial aspect#^
have been adjudicated in the Texas co u rts.
Three such cases
In the e a r lie s t one the
court maintained th a t school a u th o r itie s had no power to make and en­
force r u le s p roh ib itin g p u p ils from patronizing commercial e s ta b lis h 4» ***** «*«* ****** *»
1.
2*
82 Col* 53*
261 P.
859 Speyer
32 F (2d)
886
v
Sohool D is tr ic t Bov* 28, 1927
Goodman v School D ist* # l Denver Apr# 7,1914
3* 145 Va* 184 Fiery and County school Board of G loucester v
Smith June 17, 1926
Hments near such schools#
such m s the opinion -where such r u le s are not 1
necessary for th e p rotection o f the h ealth and morals of the pupils* hut
merely for the purpose o f securing p u p ils 1 patronage of the school
cafeteria*^
the la te r d ecisio n s resu lted in a reversal of th e afore*
said report#
Boards o f tru stees# i t was held* have power to enact r u le s,
p roh ib itin g p u p ils from ea tin g noon lunch except at the school c a fe te r ia
and to enforce such ru les by suspension of v io la to rs#
Since appeal to
higher school a u th o r itie s had not been exhausted* th e courts refused
2
to Interfere*
When a school c a fe te r ia was operated, without p r o fit,
by the school a u th o r itie s and th e P *T #&* in B1 Paso, the p ro test o f the
owner o f a m ercantile business was heard in court*
Despite h is pro­
t e s t against p rohibiting the p u p ils from leaving the b u ild in g, i t was
held once again th at in th e absence o f abuse, courts may not in te r fe r e
with the d isc r e tio n of th e school board*
”We," said the court, "have
found no in h ib itio n in th e s ta tu te s as to the establishm ent of cafe­
t e r ia s in connection with public schools *#**
I t i s apparent th at the
c a fe te r ia does not subserve a private m ercantile purpose in any com­
m ercial com petition with p rivate restaurants but i s conducted*** for
reasons -which concern th e ir w elfare as students*#** The ca fe ta r la i s a
necessary convenience *** and we think a reasonable ex ercise o f the
8
d lsc re tio n a iy power conferred by law upon the Board o f tru stees* ’*
Ifoe students* a sso c ia tio n o f a school d i s t r i c t in Washington
1*
191 S*W* 781
S a lle y
v
Brooks December 28, 1910
2* 38 S *W. (2d) 466 Bishop v Houston Independent Sohool
D is tr ic t dan* 20, 1931
dan*
8
3* 34 S»W* (2d) 654 Bozeman e t a l v Morrow e t a l Paso
# 1931
reserved lig h t lunches, candies and ic e cream fo r the convenience of th #""1
student body*
It® purpose m s to promote good order and the general wel­
fa re of the sohool rather than to make a p ro fit*
th e cou rt1g reasoning
>
i s quoted here*
"If sta tu to ry au thority be necessary to sanction student
a c t i v i t i e s in sohool b u ild in g s then* we think such au thority can be found
here**.* Education i s to be obtained not alone from the study of books,
but a lso by the development of mind in a l l proper d irectio n s*
Student
a c t i v i t i e s , a s th ey are now known and carried on with general public
approval, include*.** these a c t i v i t i e s have educational v a lu e, some
more than others perhaps, but a l l tending stron gly in t h a t d ir e c tio n .
There i s no d ir e c t , e x p l i c i t , statu tory au th ority g ivin g to d irecto rs ,
power to permit use of school b u ild in gs for anything except the con­
duct of the school®, but as an in cid en t to the general power to con­
t r o l sohool property, conduct sch o o ls, and tran sact a l l necessary b u si­
n ess i t would seem not unreasonable to hold th a t d irecto rs have a lso
necessary implied power to permit use o f sohool building® for such
student a c t i v i t i e s , as th ey may fin d to be h elp fu l and advantageous in
educating th ose fo r whom sch ools are esta b lish ed ." *
School Board Rules
lin e te e n s ta te s and eleven court ru lin gs
(seven o f th e la t t e r in s ta te s lacking such sta tu to ry authority) have
le g a lis e d t h is so -c a lle d commercial aspect o f student a c t iv it ie s *
T h irty -eig h t of the lo c a l sohool boards studied have seen f i t to regu­
la te th is p ra ctice by s p e c if ic by-law si w hile in seven d i s t r i c t s , the
perm ission to operate c a fe te r ia s i s implied*
u
County
186 Wash. 684
69 IP. (2d) 729 A.F* Hempel
duly 22, 1936
I t i s perhaps s ig n if ic a n t,
v S.B* No* 329 Snohomish
59
rthat in th© d is t r io t s of f iv e of these nineteen s t a t e s , Colorado,
~1-
C onnecticut, Michigan, Nevada, and Vermont, no reg u la tio n s have been made
fo r carrying t h is a u th o risa tion in to execution*
In e ig h t s t a t e s , Georgia,
Kansas, Louisiana, Oregon, Tennessee, Texas, Titah, and V irg in ia , #i©r©
there are no such s ta tu te s , some o f the d is t r io t s located th erein have
made provision fo r such c a fe te r ia aervie© in th© schools*
In two d is -
t r i o t s , New C a stle , Delawares and Cranston, Rhode Isla n d , the regular
tio n merely provides for the serving of a hot lunch#
New C a stle , Delaware;
Four d i s t r io t s .
W lohita, Kansas; Beaumont, and Wichita F a lls ,
Texas have regu lation # which provide th at p u p ils w i l l not he permitted
to leave the b u ilding for lunoh, except upon sp ecial perm ission o f the
superintendent*
The reg u la tion s fo r the c it y o f New Orleans, Louisiana
proh ib it "the s a le of food by ja n ito r s’* but make no plans for any other
procedure in serving food to pupils*
The sohool board regu lation s for
the d i s t r i c t o f Fresno, C aliforn ia read, "She Board of Education w ill
o rd in a rily provide th e I n i t i a l equipment for school c a fe te r ia s in
secondary s c h o o l s * I n Los Angeles the by#*laws furnish m inutelyd e ta iled reg u la tio n s fo r the operation of th e c a fe te r ia s , which must
be rented from the Board o f Education by th e "C afeteria A s so c ia tio n .”^
By reg u la tio n o f the Fresno and Los Angeles d is t r io t s , "Business o f the
student-body should, as fa r as p ra ctica b le, be conducted in such a way
a s not to o ffe r com petition with lo c a l business firm#*”
*•««•##** ***»■*• Mr#* *•■*»*»
1* Rules and R egulations o f the Board o f Education, Fresno
Aug* 1,1955 $hap. IX p. 11
2*
M v . 21
R egulations «* Los Angeles C ity Board of Education dune 1937
Sec* 461
3* Rules and Regulations of the Board of Education, Fresno op.
c it * , R egulations ~ Los Angeles C ity Board of Education o p .c it .
fiir* 21 Sec. 2752
,
J
60
Sohool c a fe te r ia s In the di at r io t o f Kansas City* M issouri
are d e f in it e ly r e s tr ic te d in th e ir use of equipment and supplies to the
provision o f regu lar lunches for tea ch ers and pupils*
A ll c a fe te r ia s are
under the d ir e c t supervision o f th© hoard and not o f the p rin rip al o f
the school*
Managers o f th e c a fe te r ia s are not allowed to use the
m aterials and equipment belonging th erein nor are employees to be used
fo r the preparation of meals fo r ou tsid e functions*
Mo fr e e lunches
may be furnished, nor may lunches be prepared or furnished for school
or other fu n ctio n s during the year outside of regular lunch for pupils
and teache rs without th© perm ission o f the Secretary-Busine as Manager#
Hie p rin cip a ls have the custody of the c a fe te r ia s in Oklahoma
City* Oklahoma w hile in Portland* Oregon the elementary school cafe-#
teria s* but not high school cafeteria s* are required to be operated as
a "child w elfare project** under th e supervision of the lo c a l F*T*A#
Here* too* th e reg u la tio n s for operating both o f th ese types o f cafe*
te r ia s are given in minute d e ta il*
Hie Beaumont* Texas by*laws pro­
vide th a t sohool su p p lies may a lso be sold in the e a fe te r ia j but the
Knoxville* Tennessee sohool board regu lation s place the c a fe te r ia
under the control o f a C afeteria Committee* e le c te d by the execu tive
committee o f each F*T#A*
The ru les fo r the operation th ereo f are
most d etailed * but the major emphasis is placed on sa n ita tio n , improv­
ing con d ition s e ith e r in the way o f b e tte r food or a d d ition al equip­
ment* and the accommodation of only those people connected with th e
schools*
To that end cashing checks* charging food* serving p rin cip a l
(H r* * # # * * ' m * * * * * * mm-—
1* Buies and R egulations o f School D is tr ic t o f Kansas City
March £ 6 * 1926 Sec# 37d p« 24
1
r'or other school employees fr e e lunch, and taking trays from the build-H
lag are p roh ib ited , 1
In general# one I s forced t o conclude th a t school
c a fe te r ia s are recognised a s a necessary adjunct to th e su c cessfu l
operation o f th e larger sch ools p a rtic u la rly th o se serving a popula­
t io n from a very great radius*
THRIFT BANKS
Oklahoma i s the only state# the laws of which provide fo r the
operation o f t h r i f t Banks "as a necessary part o f a complete system
2
of education * ’1
the recency o f the enactment accounts fo r the
absence o f court oases# attorn ey g en era l’ s opinions# and lo c a l school
board regulations*
SCHOOL STABLES
Horth Dakota
i s the only sta te -which has le g is la t io n mak­
ing i t mandatory upon sohool boards in rural d is t r io t s "to provide
fo r su b sta n tia l h itch in g p osts fo r each school site** and "upon the
p resen tation o f a p e titio n signed by e ig h t or more «,* to provide a
su ita b le sta b le upon the school s i t e without unnecessary d elay,
The a g ric u ltu r a l nature o f the sp arsely populated s ta te serves to
ex p la in i t s uniqueness in t h is respect#
Buies for th e administra­
tio n o f t h is sta tu te cannot# however# be found in the lo c a l board
rules# nor i s there any evidence o f any controversy to be found in
m m m m m m m m m m m m m m rn
0
1,
p. 84
By-Laws (Revised) K noxville
Feb*
8
# 1037 Sec.XV A,B# &
B*
sohoolr Laws o f Oklahoma
1937 Art* IV Sec, 158 p.*48
3*
Horth Dakota General School Laws 1035
Sec. 141
p* 81
m
i~th© court cases*
A somewhat sim ilar us© of sohool property was pro-
^
te ste d to Superintendent Draper o f Hew York in 1908, when two hundred
d o lla r s m s voted a t an annual meeting to e r e c t horse sheds on a sch oolhouse site*
Although major emphasis was placed on the r e lig io u s aspect
o f the a lleg ed misuse* the superintendent ruled that the law did not
sanction t h i s use o f funds, th a t the space should he reserved fo r
c h ild r e n s recrea tio n , and th a t they (the sheds) would prove ob jection ­
able from th e point o f view o f sa n ita tio n and clea n lin ess* *
Attorney Genera 1 o f Ohio
The
(in 1016) rendered an opinion in which he
advised th a t W
wher© the seme i s necessary fo r the convenience o f pupils
#10
d rive t o sc h o o l, boards of education are authorised under th e
p rovision s of Section 7680 General Code, to erect a stab le fo r the
sh e lte r and p ro tectio n of the h orses, v e h ic le s and conveyances o f such
p u p ils * ’*2
HEALTH CLINICS
That the maintenance and operation o f a h ealth department in a
public school i s an expenditure of school funds for a non-school pur­
pose was a lleg ed by the taxpayers of D a lla s, Texas in a s u it before
the courts*
deferrin g t o A r tic le 8827,” .* * and for other purposes
necessary in the conduct of th e public sch ools to be determined by the
tru stees* * * 1’, the court h eld , ’’The board i s a ctin g w ith in the powers
granted to i t •«•» The express power given *»• to do th e th in gs
1* J u d icia l D ecisions - Burtes
Hempstead Oct* 31, 1908 p* 904
2.
v School D is tr ic t #17
Opinions of the Attorney General 1916 - p. 1483
J
S p e c if ie d th erein n e c e ssa r ily in clu d es the rig h t and power to do the
^
in cid e n ta l th in g s reasonably proper and necessary to accomplish that
end#”
In th e absence o f an abuse o f d isc r e tio n , the court refused to
in terfere* *
several years p revious, however, in reversing a d ecisio n
of the lower co u rt, the Supreme Court o f th e s ta te ©f Washington placed
a much more s t r i c t construction on th e s ta tu te s , saying* "The sta tu te s
s p e c if ic a lly enumerate twenty-two powers* *.j but we think th e rendering
o f medical se rv ices fo r pupils# whose parents are unable to furnish
such treatm ent, i s so foreign to the powers to be exercised by a school
d i s t r i c t th a t such power cannot be held to e x is t in th e absence of ex­
p ress le g is la t iv e language so providingi
but there i s no le g is la t iv e
In ten t expressed even I n fe r e n tia lly to oonfer upon school d is t r ic t s th is
power*
The L egislatu re may g iv e heed to th e arguments of counsel th at
such powers ought t o be p ossessed, but the courts cannot do so#”
reg u la tio n s o f Cranston, Rhode Island
The
provide for the establishm ent o f
a c l i n i c for the treatment of orthopedic d e fe c ts in such bu ild in gs as
the school committee may d irect*^
Dental c l i n i c s are provided for
in the P a ssa ic , Hew Jersey regulations*,.
The sc a r c ity o f le g a l data a v a ila b le and the lack o f unanimity
make i t im possible to draw any r e lia b le conclusions a s to the general
a ttitu d e and p ra ctice o f the -states in the- matter o f h ealth c lin ic s *
Health c l i n i c s , for the promotion of p u p ils 1 h e a lth , are provided for
1*
IT S $ # (2d)
36 Moseley e t a l
113 Wash. 619
194 Pa©* 817 0.0* McGilvra ©t a l
Ho* 1 dan# 14# 1921
v
C ity of D allas May 29, 1929
2.
3*
Chap T il
L-
v
S e a ttle School D is tr ic t
Rules and Regulations of the School Committee Cranston 1937
Sec* 7 p* 31
j
64
rin W isconsin statu tes*, th e establishm ent and maintenance of dental
n
c lin ic s , in West V irginia lias a ls o been the subject o f l e g is la t iv e enact-,
meat#
l a th e l a t t e r ca se, free treatment i s privided in th ose cases
deemed n ecessary by the board o f education! where p u p ils would be unable
otherw ise t o procude such treatment*
In both in sta n ces school board
reg u la tio n s and court d e c isio n s in the s ta te s mentioned are not avail#
ab le on t h is topic*
PE1HT SHOES
Oklahoma i s the only s t a t e providing by sta tu te ’’for the e s ta b lis h ­
ment, maintenance, and operation o f p rin t shops in the sch o o ls, a s part
of a complete public school system o f such character as the boards of
education sh a ll deem b e st su ited to th e needs of the school d i s t r i c t s , 1”
Such shops, however, are and have been an e s s e n tia l featu re in many
sch ools o f the resp ectiv e d i s t r i c t s of a l l sta tes*
The school board
reg u la tio n s o f Fitchburg# M assachusetts .provide, "Ho work sh a ll be don©
by th e pupils of the public sohools in com petition w ith p rivate indus­
tr y except in such ca ses where such work i s confined s t r i c t l y to muni­
c ip a l purposes# req u ests for which have been approved by the school
board***
Ihose of P ittsb u rg, ganaa©
provide, "It s h a ll be th© duty
o f the Printing Department o f the Senior High School to use a s c la s s
p ro jects th e p rin tin g o f blanks, programs and other su p p lies necessary
in carrying on th e conduct o f the sohools*
The Board o f Education w i ll
not permit p rin tin g o f any m aterial in com petition with lo c a l print
1*
lb© School laws o f West V irginia
I960 Art* V Sec*£3
2# Buies of School Board Fitchburg, Mass* 1936
sec* SI p*24
L_
p*S§
Chap* VI
J
rshope except th a t mentioned above."^
The Kansas C ity , M issouri,
~i
regulation® devote an e n tir e sectio n t o the subject o f school p rin t
shops, and in general p roh ib it work th erein which i s not
for.school or
semi#school o rg a n isa tio n s, which does not contribute toward an educa­
tio n a l purpose, tdiieh i s n o t under # ie personal d irectio n and super­
v is io n of th e p rin tin g in str u c to r s, and any work th erein in th e even­
in g s or on Sundays*
, "Ro department of the sch ools [in G allup, Hew
Mexico"! i s permitted to do any work for any other department *. • or
fo r any ou tsid er or outside organ isation , without perm ission to do so
granted by the superintendent or the Board of Education*"
H arrisburg, Pennsylvania regu lation s provide!
The
"The a c t i v i t i e s in
various in d u str ia l shops are to be confined to products fo r school**#*"^
A Section in th e Beaumont, Texas reg u la tio n s requires "that a l l p rin t­
ing done on school p resses s h a ll have upon i t the follow in g id e n tify ­
ing expression ♦Authorised by Board of Education, Beaumont Independent
Sohool B ia t riot*" and p ro h ib its the loan of any equipment in the press
room or i t s use by any printer or concern.
I t i s exp ressly under­
stood th a t, "no p rin tin g o f any kind whatsoever s h a ll be done for c iv ic ,
n
commercial, r e lig io u s , fr a te r n a l, or p o lit ic a l organisation® .*. #"
Kansas
1. Rules and Regulations - Board of Education, P ittsbu rg,
Hov* 1936 Chap* XIII Sec. 4 p. 13
2 . Rules and Regulations o f Sohool D is tr ic t o f Kansas C ity
March 25, 1936--Sec* 81 a - 1 pp. 74-80
3
3 and 4
.
Rules and R egulations o f the .Board o f Education* D is tr io ts
G allup, Hew Mexico p* 4
4* Rules and Regulations of Board of School D irectors of the
C ity o f Harrisburg Deo* 28, 1934 Rule 49 Sec* 10 p* 103
5* Rules and R egulations - Beaumont City S ch ools, Texas March
31, 1937 Art* V Sec* lh p* 36
p u p ils (according to S a lt taka C ity , tJtah regu lation s) are not allowed "1
to do work for hire# for teach ers or o th e r s, w hile working in any o f the
sohool shops*
’'they m y bring from home projects# including autos on
which they w ill work while learning shop practice**** th e schools do
not do custom work on any basis*"^
Moline# I ll i n o i s regu lation s pro­
h ib it the contracting o f work to be done or sold in th e manual a rts
school*^
the value o f shops as a part of the educational f a c i l i t i e s was
re ce n tly a tte s te d by the cou rts o f ffcrth Carolina# when the taxpayers
o f Mecklenberg County sought an in ju n ctio n -to prevent money being spent
for ad d itio n s to sch ool buildings#
"The resolutions#" said th© court#
"include in th e proposed improvements**.# a new shop for the Technical
high school . . . . As to th e se we are o f the opinion th a t the auditorium
and the shop are component p arts of a general system and in a modern
sohool are o ften no le s s serviceab le than rooms fo r cla sses* *♦ *n "The
order o f the board o f county commissioners i s w ithin the contemplation
of the recent act*"®
(Sec#
8
# Chap* 81)* Only eigh t sohool boards
in d ica te a d i s t r i c t awareness o f a problem which has not y et been the
su b ject o f l e g is la t iv e enactment# the so lu tio n o f which w i l l continue
to r e s t on the id e a l o f "non-competition with b u sin ess **1
mrnjAL m u m m p rojects
C losely a l l i e d to th e subject of shops i s the use to be mad© o f
1* Rules and R egulations and Administration P o lic ie s - S a lt
Lake C ity Public Schools Aug* 10, 1937 Sec* G* p* 29
2*
By-Laws of Board o f Eduoatlon - Moline 1930 Chap* XXII Sec*3
3#
205
p*25
H*C. 560 Evans v Mecklenberg County Jan* 10,1934
j
nproducts made by p u p ils in the various shops*
While s a le s in sc h o o ls“1
are most g en era lly forbidden* a s noted previously in t h is chapter* the
s ta tu te s o f Wisconsin provide that* ’“A r tic le s manufactured in vocation­
a l c la s s e s may be disposed o f a t th e ir market value*** a t the d isc r e tio n of the school board#**W|
1
while the by-laws o f Cranston, Rhode
Island permit the s a le o f a r t ic le s made in manual training* domestic
arts* or sim ila r cla sse s* ^
wIn the event th at any person should d esire
to purchase any o f the products of the in d u stria l a r ts cla sses* th e
in stru cto r o f th e c la s s producing said product (In Newport* Rhode IslandJ
s h a ll s e t a p rice s u f f ic ie n t to cover the c o st of m aterials used in i t s
con stru ction *t#*1^
th e Oakland* C aliforn ia
regu lation s provide*
"•••no work for teachers or ou tsid ers sh a ll be undertaken in any shop
except the auto shop without w ritten approval of the principal#
The
p rin cip al s h a ll s a tis fy h im self th a t the work done in school shops has
in str u c tio n a l value and w i ll not place the school ««» in an unpleasant
or embarrassing p osition *
In general* the quantity production o f any
a r t ic le in a school shop for an in dividu al not a member o f the class*
or fo r a b u sin ess concern i s not approved*
ru le ##**,‘^
Exceptions to t h is
,
Sim ilarly in Moline* I l l i n o i s , "No work o f any descrip­
tio n sh a ll be done in the manual a r ts school by any teach er therein*
nor sh a ll a teacher make* or o ffe r for sale* any a r t ic le made In
1* Laws o f Wisconsin R elating to Common Schools 1936 Cbap#40
Sec# 40*63 p* 607
0#
p#
By-Laws o f School Committee* Cranston 1938 Art* IX Sec#
6
20
1937
3* Rules and R egulations o f the School Committee* Newport
Chap* XIII Sec* 4 p. 49
4.
Rules and Regulations o f the Board of Education, Oakland*
LCalifomla* Aug# 1936 Biv# XI Sec* 106-7
j
_
1
'the school ***."
Oia the. contrary* th e p rin cip a ls o f such schools in -1
Boston, Massachusetts are, "authorised to purchase m aterials as may be
needed fo r working in to products which are subsequently to be sold or
otherwise disposed o f **♦ ."^
A se c tio n a lso holds "that a l l products
manufactured in the sch ools from m aterials supplied by the School
Committee s h a ll be the property of the schools*”
3
tio n s a lso provide for the sa le a t c o s t o f a r t ic l e s
the Boston regula­
made by pupils in
sp e c ia l c la s s e s or in sewing, cookery, or manual tra in in g classes*
th e Kansas C ity, Missouri reg u la tio n s provide, " A rticles made
by p u p ils in sp ecia l opportunity schools may be sold and the money used
fo r purchasing new supplies*"^
In Rochester, Hew fork, "All products
o f p u p ils' work fo r vfoich the Board of Education fu rn ish es the m aterial
.fi
are the property of the Board o f Education*”
"The sa le of a r t ic le s
made in sp e c ia l c la s s e s , when the proceeds are to be used fo r the
b e n e fit of the c la ss e s i s not forbidden” by a board regu lation pro6
h ib itin g s a le s in the Richmond, V irgin ia schools*'
The Attorney Oeneral of Washington has, however, ruled th a t,
"School d irec to rs have no authority to impose a charge upon the pu pils
1* By-laws o f the Board o f Education Molise# I l l i n o i s 1930
Chap. XIII Sec. 2-3
p* 25
2. Rules of School Committee and Regulations of Public Schools
C ity o f Boston 1935 Chap. XIII Sec* 225-6 p*95
3. I b id .,
Chap* XXVIII
S;ec. 444
p* 188
4* Rules and R egulations o f the School D is tr ic t of Kansas
C ity, Mo* March 25, 1936* Sec* 76g
p. 72
H.T *
5* R ules and Regulations - Board of Education Rochester,
Amended to Sept* 1936 Art* Va* p. 6 8
6 * Rules and Regulations
o f the School Board - Richmond,
Va* March 23, 1934 Art* V* Sec. 19
p. 11
i—
*
r ?£ th© school to cover the co st of m aterials and supplies furnished by”
the d i s t r i c t and used in connection with the ©lass work of the schools
fo r th e sub jects o f domestie science and home econom ics*.. , but i t does
not n e c e ssa r ily fo llo w .th a t school d i s t r i c t s do not p ossess the power
to require students themselves to furnish necessary m a te r ia ls .. . . n^
nthe a c q u isitio n by p u p ils a t reasonable p rices o f a r t ic le s made in
in d u stria l* manual training* domestic a r ts , or other sim ilar c la s s e s
under su ita b le r u le s and regu lation s adopted by th e School Committee*’
(o f Rhode Isla n d ) Is sim ila r ly not to be construed a s prohibited in a
sectio n which p ro h ib its sales***
In Hew York City, ’’principals* * , are
required to f i l e w ith the auditor *»» a statement of a l l matter p rinted,
and a r t ic le s made or produced in the school w ith the estim ated r e t a il
commercial value of each and the d isp o sitio n made th ereof*”^
In general* there are two schools of thought on t h is su b ject.
One would have the school board furnish the m aterial fr e e and become
the owner o f the product manufactured therefrom*" The second would
permit a charge to be made fo r the m aterial, and would provide for the
sa le of the fin ish e d product, the money derived thereby, to be used for
purchasing ad d ition al m aterial*
SCHOOL St-QBBS
A h igh ly con troversial is s u e , sim ilar to the c a fe te r ia problem,
1*
1929
Attorney General Opinions - Washington Nov* 10, 1921
2 . Laws o f Shod© Islan d B elatin g to Education
Chap# 77 Sec* 10 p* 9
Supplement ¥ *
3 . By-Laws of the Board of Education of the C ity of New York
March 9, 1927
Sec. 67 Paragraph 29 p* 104
J
70
*Ts the purchase and s a le of school su p p lies and school te x ts sometime s~l
undertaken through the medium of so»eailed "school sto res" , operated in
tdiole or part by student organizations*
That such su p p lies'are necessary
for the su ccessfu l adm inistration o f education i s undisputed* but where,
when, and from whom, th e y .s h a ll be purchased i s a never-ending source
o f controversy because of the p r o fit element involved therein*
S tatu tes and Board Buies
In Indiana under the su b ject of "Text-
Book L eg isla tio n " , school boards are authorised to purchase textbooks
from the publishers a t w holesale p r ic e s and t o s e l l said t e x t books to
p u p ils a t a p rice not in excess o f twenty per cent above cost**
The
d i s t r i c t of Terre Haute makes the p rin cip al of each school responsible
fo r th e sa le of school sup p lies to the pupils*
Those school d is ­
t r i c t s o f I l l i n o i s , not operating under the "Free Textbook Act" a r e ,
"authorised to purchase textbooks •*# and to s e l l said books to the
p u p ils a t such p rice s as w i l l include the c o s t o f transportation and
handling*"^
Moline reg u la tion s forbid "th« sa le to p u p ils of paper,
p en cils,* * * other than the regular stock furnished by the Board";4'
while Rock Island d i s t r i c t p laces the school p rin cip al "in charge of
a l l books and sup p lies sent to th e ir schools for s a le to the p u p ils* •*•
1*
School Laws o f Indiana 1935
Chap. XXI
«6
S ec, 967 p* 368
2* Public School Rules and Regulations o f Boards of School
Trustees Terre Haute 1926 p* 31
3#
Sec* 2
The School Law o f I l l i n o i s
4.
p* 25
1936
p. 299
By-Laws o f the Board o f Education - Moline 1930 Chap.XIII
5* General Rules and R egulations o f the Board of Education Rock Island duly 1,1926 p. 41
J
n
rThe Iowa
sta tu te s "empower boards of d irecto rs in a l l school d is tr ic t^
{whose voters have not voted fr e e textbooks) to buy said adopted text*
books and any and a l l other necessary school supp lies *.♦ and to s e l l
the same to p u p ils *. * a t oosfc*"^
The d i s t r i c t s o f Cedar Rapids,
Council B lu ffs* Keokuk* and Sioux City have reg u la tio n s providing for
the s a le of supplies* as mentioned in the statu tes* under the con trol
o f th e boards*^
In an ea rly case in t h is sta te the defendant* one of
the Board of Birectors* fin ed fo r v io la tin g a sta tu te by s e llin g school
books and su p p lies to the p u p ils, pleaded the n e c e s sity fo r uniform
tex ts*
In sustain in g th e lower court i t was holds "Section £384 a p p lies
t o , and p ro h ib its a school d ir e c to r from, engaging oh h is own account in
the sa le of books and supplies to p u p ils and i s not lim ited to d irecto rs
g
a ctin g a s agents of the board under Code S ection 2824."
Boards of education are permitted by sta tu te in Kentucky "to
purchase and s e l l textbooks to pupils" and "required* i f requested by
pupil moving from -the d is tr ic t* to purchase books in actu al use* the
same to be sold by the board***♦
The school laws of Michigan pro­
vide th a t v o ters in school d is t r ic t s may determine whether or not they
1*
See* 4446
The School taws o f the State of Iowa 1935 Chap* 231
p« 271
2 *
Handbook o f Public Schools Cedar Rapids 1936 p * 8
D irectory of Council B lu ffs Public Schools 1037 p* 43
Rules and Regulations o f the Independent School Dlst* of Keokuk 1927
Rule 87 p* 21
Rules and R egulations o f the Board o f Education o f Independent School
D is tr ic t o f Sioux C ity 1931 Art* XI Sec* 25
p* 17
3*
130 Iowa 31 S ta te o f Iowa v R.E. Wick Appellant Mar*6 , 1906
4* Kentucky Common School Laws
Sec* 4421 a-41 pp* 185-6
i_
dune 1934
Chap* XIII
_I
n
iwish to fu rn ish fro© te x t books! but -where such i s not done, the board 11
may s o i l textbooks and other su p p lies to the pupils*^
An appeal m i
brought by the Attorney General* upon the r e la tio n of two taxpayers of
the c i t y of D e tr o it, d ea lers in books* to r e str a in the c i t y board from
p u rch asin g a supply of such high school textbooks* As are not furnish*
©d fr ee »*♦ and t o arrange fo r the s a le o f the books a t c o s t to the
p u p ils# ”
At that tim e the only relevan t sta tu te gave the “Board the
Education f u l l power and authority to make by-laws and ordinances «#♦
r e la t iv e t o regu lation o f schools and books t o be used th e r e in !•• •
r e la t iv e to anything whatever “feat may advance the in te r e s ts of
education* the good government and prosperity of the free sch ools***.”
fhe court* affirm ing the decree of the lower court* held such was not
within, fe e meaning and purpose o f the s ta t u te .
”w© are impressed*
however* th a t fee grant we are considering was not intended to em­
power the board o f * .. to do everything whatever th a t may advance*.,
but only such th in g s a s i t may do without changing i t s character.**
without* fo r example* assuming or taking on the character of a commer­
c ia l or trading corporation**.*
She reasons which are urged in sup­
port of fee ©xerois© of greater powers than are herein in dicated should
be urged upon the le g is la tu r e * ”^ the le g is la tu r e has sin ce t h is de­
c is io n in d icated public p o lic y in such matters* in e f f e c t n u llify in g
fe e d e cisio n and further elim in atin g the .sales tax'from such trans-i
*■*»■»•—»■ip*j j #. .m
1.
See* 7388
».
G en era l School 'haws
p* 71
Chap* 31
Sec* 7648
S tate o f Michigan 1938 Chap.
p* 171 '
8
£*
175 Mich. 438 _
_
,
, >
.
141 N m . g ? 4 K^h*1* Attorney General ex r e l Sheehan v
Board o f Education* D etroit
May £ 8 * 1913
J
1
a c tio n s .
Hot any of the Michigan school hoard regu lation s studied has-1*
r u les for the execution o f t h is s ta tu te .
The Mlnnesota State God# pro*
▼ided* "VShen d irected by a v ote o f the d is tr ic t* or when the board deems
i t advisable . . . th e school board sh a ll . . . provide for the free us# of
such books by the p u p ils of such schools* or th e ir sa le to them a t c o s t .’’
Those school d i s t r i c t s o f Hbrth Dakota, In ‘sdiich fr e e textbooks are not
provided* "are authorised to purchase textbooks from the publisher a t
p r ic e s and terms *•• and to s e ll said books to the p up ils a t sa id cost
p r ic e s or a t such p rices as w ill inolude the cost o f transportation and
cost o f handling.**^
The adm inistration of t h is problem in South Carolina i s unusual*
"County boards of education . . . are hereby authorized and required to
se t asid e from th e public school funds *•*, an amount* not exceeding
f iv e hundred dollars* fo r the purpose of providing . . . -with, school
textbooks a t actual co st or a t exchange p rices . .,* th at the county
superintendent of education in every county in the s ta te be and i s
hereby required to keep h is o f f ic e open each day of the week prior to
time . . . school to open *. . * and fo r one week immediately th e r e a fte r ,
and fo r the convenience of those wishing to purchase books) provided*
however* that in the cou n ties o f (eleven cou n ties nameCI
*•• are
hereby authorized and empowered but not required to carry out • • . . w®
In 1935 the fforth Carolina "Text Book Purchase and Hental
1931
1. Laws of Minnesota H elating to the Public School System
Sec. 73 Paragraph 8 , p. 28
2.
152
Borth Dakota General School Laws
1938 Sec.
874 pp.221-2
3. General School Laws of South Carolina 1929Sec. 2683 <*
pp. 56-7
rOommission was au thorised , empowered and d irected to promulgate ru le s ~i
and re g u la tio n s necessary • • • to provide fo r xml form ren ta l charges for
said te x t books and su p p lies to the children in attendance upon the
public schools o f the sta te •
said ren ta l charge sh a ll be c o lle c te d
annually and not to exceed one th ird of the c o s t o f the said te x t books
and suppl i es*”
An a ct o f th e 1937 sessio n o f the le g is la tu r e re­
s t r i c t s such ren ta l serv ice t o high school pupils*
Boards of education
in Utah ”may s e l l to pupils *** at c o st a l l textbooks and su p p lies
used by th e pupils****”
th e Idaho State le g is la tu r e passed an act in 1935 prohibiting
s a le s to p u p ils *•* of merchandise to be used in connection with
school a c t i v i t i e s ***”; but fu rth er provided* "Nothing herein contain­
ed s h a ll prevent the d ir ec to rs or tr u ste e s of any school from purchas­
ing books* su p p lies .♦* necessary for the operation o f s a id sohool and
s e llin g the same to th e pupils th e r e o f.”^
The M ississip p i code pro­
v id es, "Nothing in t h is a r t ic le |~Artioie XXX - Textbooks] s h a ll pre­
vent the school board o f any county* consolidated d i s t r i c t , a g ri­
cu ltu ra l high sch o o l, or separate school d i s t r i c t in the s ta t e o f
M ississip p i from purchasing textbooks to loan or rent to the p u pils
o f such schools*”^ The Text Book Act o f the V irgin ia sta tu te s warns,
"Nothing in th is a ct sh a ll be construed to apply to books sold d ir e c tly
1#* Public School law o f North Carolina 1955 Supplement
Sec* 329a p* 38
2*
School Laws of the
3*
Idaho School Law Changes for 1938
4* Sohool Laws o f the
Sec* 290 p* 132
State o f Utah 1937 S e c .75-11-20 pp.33-4
p* 328
S tate of M ississip p i 1930 Art*XXX
n
rby A gohool board to patrons*’1^
The s a le o f books i s authorised
“1
(# ie r e d i s t r i c t s have n ot voted t o furnish free te x t books)! although
the sohool boards of the c i t i e s o f Roanoke, D a n v ille, Alexandria, and
Portsmouth, by sp ecia l a c t,
are authorised to purchase and own such
11
te x t books as may be used in the public schools of the c i t i e s and to l e t
them out to p u p ils o f sa id sch ools on such a ren ta l b a sis a s said boards
may deem f a ir and reasonable,'”
On the contrary, the Attorney General
of Washington, has h eld , ttA school board cannot la w fu lly purchase t e x t­
books and s e l l them t o the p u p ils of the d i s t r i c t * ^
The evidence d is c lo s e s that the taxpayers of many s ta te s have
agreed ( 1 ) to assume an a d d itio n a l burden of providing free uniform
books and sup p lies to children in the public sch o o ls, ( 2 ) that in the
process o f tr a n sitio n d ea lers have resented the schools assuming the
nature o f a commercial corporation, ( 3 ) that where the tr a n s itio n is
n ot y e t completed, as i s th e case in eleven s t a t e s , great d isc r e tio n
i s l e f t to th e v o ters o f th e r esp ectiv e d is tr ic ts # (4) that meanwhile
the e f fic ie n c y o f the educative process demands th a t the school boards
undertake the sa le of such books and supplies# in s p it e o f i t s seemin g ly commercial nature, (5) th at th e le g is la t u r e s have made sub­
s ta n tia l e ffo r t to minimise the commercial aspect o f the tran saction
by providing d e fin ite reg u la tio n s fo r such sales*
A very recent a c t of the Oklahoma L egislatu re, au thorises,
amongst other th in g s, the establishm ent, maintenance, and operation of
1.
V irgin ia School laws
2.
Ib id *,
3*
Attorney General Opinions .1905-1908
'Chap* 127
1936
Sec. 1
Chap* 33
See* 633
p*18
p* 141
p. 253
J
1
"book stores*"
I t i s unique in the sense that i t i s the only
sta te
to have s p e c ifie d t h is typ e of a c tiv ity I but i t has been con tested in
the court as a "commercial use" o f the schools#
In 1951 one Bozeman,
doing m ercantile b u sin ess adjoining the Austin school in 81 Faso, Texas,
a lle g e d th a t -the school p rin cip al entered in to u n fair com petition by
conducting a m ercantile establishm ent In the sch o o ls, where he paid
n eith er rent nor taxes*
I t appeared th at a small stock of sohoo!
su p p lies m s so ld to the pupils w ithout p r o fit in emergencies, in
connection with a sohool c a f e te r ia , maintained by the school a u th o r itie s
and th e Parent Teacher A ssociation*
junction so ught,
The d i s t r ic t court denied the in ­
In affirm ing t h is d ecisio n the Court of C iv il Appeals
h eld , among other th in g s, th a t
since any money made
on
the sa le of
su p p lies was used fo r the purchase o f a t h le t ic equipment, lib ra ry books,
or music su p p lies, i t would not in te r fe r e , in the absence of abuse,
with the d isc r e tio n of the sohool board in adopting ru les fo r th e d is­
c ip lin e o f the sohool*
The sta tu te re te x t book d istr ib u tio n m s held
not to have been v io la te d .^
This sectio n provides "Ho teacher .* .
engaged in the d istr ib u tio n o f t e x t books*.* s h a ll in connection with
t h is d istr ib u tio n , s e l l or d istr ib u te or in any m y handle any kind of
. . . su p p lies such as *** crayons, era sers, pens, in k , p e n c ils, t a b le t s ,
e t c . "3
$ { ,0
s ta te Department ru lin gs on t h is subject m ain tain ,(1)
"Ho law forbide teachers from s e llin g sohool su p p lies except t h is
1.
Texas
School Laws o f Oklahoma 1937 A ct. VI Sec* 165
2 . 34 S*8f« (2d) 654 Bozeman e t a l
dan* 8 , 1931
v
p* 45
Morrow e t a l . El Faso,
3.
Public School Laws of Texas - 1935 Chap* XII Sec* 310
(2876 b) p. 141
n
a r t ic le in connection -with the d istr ib u tio n of sohool books **1
(5) ’’The5
d istr ib u tio n o f te x t books t o pupils should not be placed in the hands of
any* merchant or mereantll© establishm ent d ealin g in any kind of sohool
sup p lies ..* * w^
Two such oases were heard in the cou rts o f W isconsin, the e a r lie r
in 1914i
vhere the p rin cip als of f iv e public sch ools in the c it y o f
Milwaukee were conducting regular sto r e s in the school b u ild in gs!
“which th ey so ld boisks and sta tio n ery a t a p r o f it .
In
When the req u est, of
the Milwaukee S ta tio n ers and Manufacturers Club, to d iscontinue such
private b u sin ess was refused a temporary in ju n ction was received*
D espite many in cid e n ta l q u estion s, 'the court ruled a gain st th e prin­
c ip a ls , maintaining* wI f t o complaint a lleg ed a sta te o f f a c ts which
showed that the School Board in th e ir o f f i c i a l cap acity were furnish­
ing books and su p p lies to p u p ils a s an in cid en t to a su c cessfu l and
e f f i c i e n t conduct o f th e public sch o o ls, we would then have presented
to us an e n t ir e ly d iffe r e n t case from the one presented by the a lleg ed
2
fa c ts in t h is com plaint,w
F ifteen years la te r , a sim ilar ©as© was
in s titu te d a g a in st a p rin cip al who conducted a n o n -p ro fit making, but
s e lf-s u s ta in in g supply sta tio n In a high school building in Milwaukee*
Although no money was paid fo r the room used, the p rin cip al had the
perm ission of the school board.
In t h i s case the court upheld the
p rin cip al and th e school board quoting Sec* 3 Chapter 469, o f the
S ta tu tes which g iv e s the Board of School d irecto rs power H o adopt such
1,
2
.
The ihnd Book.of Texas School law - 1933
149 M.W* T18
159 Ms* 39
v
pp.613 - 605
, _ _
q *n,a
Krug e t a l Deo* 8 , 1914
J
[-'measures as s h a ll promote the good order and public u sefu ln ess of said!
schools*1’
in referring to the e a r lie r case* the judge d istin gu ish ed
that ca se, a® one in which the sta tio n m s operated for a p rofit*
Quoting judge Aaron on th at occasion* he upheld the operation of th is
non -p rofit making s ta tio n as a ’’su b sta n tia l aid to th e p u p ils and
teachers*”
L it t le mention i s made of wschool sto r e s” a s such in school
board regulations* although t h e ir ex iste n c e i s q u ite gen erally recog­
nised*
The r u le s u su a lly proscribe ’’s a le s ”* except those of certa in
a r t ic le s }
but those of El Faso* Texas are in d ic a tiv e of a rather
general p oint of view*
"All high sch o o ls run a type o f cooperative
sto re w ithin the school building*
n ectio n w ith ca feteria s*
These are sometimes run in con­
Such sto r e s should be run on a n on -p rofit
b a sis and w ith the approval and supervision o f the property custodian
•*•«
No one in the b u ilding should handle money except persons d e fi­
n it e ly authorised through the accounting department*”^
SCHOOL QRCHESTHAS
A r ec e n tly passed Hew je r se y statu te* the only one o f i t s kind,
p ro h ib its ’’school orchestras in com petition w ith c iv ilia n music except
a t fu n ction s connected w ith the sohool and th o se o f a p a tr io tic
nature
Jersey City* the only school d is t r i c t providing for i t s
*W M M . * . * * * * * » * . * » « * « *
!•
?*W• J* 1
199 Wis* 42
Cook v
Chamberlain A pril 30, 1929
r
2* Handbook for High School Teachers - El Paso, Texas
August 1936
3*
Hew je r se y School Laws 1938
Chap* XIV
18? 14-92*1 p*l38
n
1 execu tion , d eleg a tes t h is sp e c ia l duty to the Supervisor of Music
^
D espite the lack o f p ertin en t s ta tu te s , the sohool board regu lation s of
Oakland, C aliforn ia provide th a t, “School orchestras and bands s h a ll not
play for out side organ isation s for pay, nor when an admission i s charged,
nor when sa id organ isation could and probably would employ p ro fessio n a l
%
m usicians i f i t were unable . *." s
w hile those of Beaumont C ity, Texas,
place the burden of r e s p o n s ib ility for public appearance of the high
school band on the principal*^
SUMMARY
One i s forced t o conclude that an ev er-in crea sin g , although
s t i l l sm all, number o f s ta t e s i s compelled to recognise the trend
toward commercial use of the schools#
I t seems to be apparent th at
com petition with business i s n eith er intended nor perm itted.
v a r ie t ie s o f t h is commercial aspect are almost
The
without number but a
few s p e c ific fin d in g s can be formulated.
1*
Many commercial agencies seek to use the schools fo r private
3#
State law and school board regu lation s have very c o n siste n t­
p ro fit*
ly prohibited such use*
3*
Even where th ere are no sta tu te s on the subject courts
refu se to in te r fe r e when an abuse of d isc r e tio n cannot be proven*
1.
Rules and Regulations for the Government of Schools, Board
of Education, Jersey City Sept* 3, 1936 6 A and B p. 01
Zm Rules and Regulations of Board of Education,Oakland,
C a lifo r n ia , Aug* 1936 Div* IX Sec* 170-174
3* Rules and Regulations -Beaumont C ity Schools, Texas
lMaroh 1,1937 Art* 6
p* 64
j
80
r
4*
The encroachment o f business on the schools has made f e l t
the need fo r sta tu to ry regulations*
5*
General expansion o f school a c t i v i t i e s has been a great factor
in the a lleg ed charge o f commercial use of the sohool f a c i l i t i e s .
6
.
l e g i s l a t i v e enactments* p roh ibiting a commercial use o f the
sch ools through the medium of the pupils* have been passed In only nine
sta tes*
7*
School c a fe te r ia s are recognised by the cou rts and the
sta tu te s as a necessary convenience* in sp ite of th e ir r e s p o n s ib ility
fo r dimunition of p r o fit in lo c a l b u sin ess.
8
* tw en ty -fiv e types of ’’commercial u se” are prohibited in th e
school board r eg u la tio n s.
9.
Board o f education w ill not permit any use of school prin t
shops -which o ffer s com petition t o lo c a l print shops.
10
.
th e commercial radio program* the most recent form of
commercial a c tiv ity * i s banned in only two d is t r ic t s *
11.
School orch estras may not enter in to com petition by p a r t ic i­
pating in o u tsid e a c t iv it ie s * by mandate of one s ta tu te and three school
board re g u la tio n s.
12*
School books and su p p lies may be so ld in ”school s to r e s ” when
the e f fic ie n c y of the educative process i s thereby enhanced.
13*
School boards are v ir t u a lly unanimous in th e ir proh ib ition s
again st ad v ertisin g and s a le s in the schools*
14.
t h e p roh ib ition s again st s a le s In the school b u ild in g s,
include candy sa les* garden seed s a le s , t ic k e t- s e llin g * s a le s of
magazines* s a le s o f school supplies* and canvassing in general
J
n
IS*
The a c t i v i t i e s of Hi© Junior Red Cross and parent teacher
a sso c ia tio n s are u su a lly exempt from these in ter d ictio n s*
16*
The d isp o sitio n o f manual train in g p ro jects Is not uniform
in p ra ctice or regulation*
L_
n
CBfcPTER III
c o ia M c m tisE
of school
BRopsm
The encroachment on the schools during school hours by b u sin ess
in t e r e s t s , and the a lleg ed commercial aspect of some of the sohool1©
a c t i v i t i e s , in cid en ta l to i t s su c cessfu l ad m inistration , have resu lted
In serio u s disputes*
The outcome of those a c t i v it i e s , carried on in
school property by sch o o l, semi**echool, and outsid e organ!nations,
has freq u en tly been an appeal to th e cou rts, accompanied by b itt e r
controversy,
These cover a -wide v a r ie ty of purposes, and have been
accompanied in many c a se s by much fo ren sic a b i lit y on the part of the
resp ectiv e counsels pleading one or the other side of some o f the oases.
The emphasis on com petition, r e a l or imaginary, f a ir or u n fa ir, i s a
p a r tic u la r ly s a lie n t featu re of these co n tro v ersies,
J u stice Folland
suggested in an o b ite r dictum th a t although an alleg ed commercial use
cannot be proved, nA w ise use of d isc r e tio n , on the part of sohool
o f f ic e r s , -where the community i s adequately served in th is respect by
p rivate en terp rise i s d esira b le* ”* Once again i t becomes more ©bvi->
ous th a t th e use to be made o f sohool property i s a very contentious
subject*
School organ isation s in general are now a l l recognised as
products o f a p rogressive school system,
Semi-school organizations
such a s parent Teacher A sso cia tio n s, Alumni A ssociation s etc* are the
r e c ip ie n ts of such sp e c ia l regu lation and le g is la t io n a s would connote
1.
IS P. (2d)
Summit Sohool D is tr ic t
900Beard v Board of Education of North
Dec. 10, 1932
83
^a degree of recogn ition o f the cooperation necessary between the home
and the school or the school and i t s community*
1
I t i s none the le s s
true th a t the purpose and scope of a c t iv it y fo r such organisations has
not y e t been accurately defined*
A d eta iled study o f these and sim ilar
organ isation s w ill be found in the chapter on "Educational Uses".
As
fo r th e ou tsid e organisations* the question i s h igh ly debatable.
Many
fa c to r s operate to prevent use by such organisations*
Chief among
th ese are the u n s u ita b ility of the school p la n t, th e added expense to
operating c o s t , and the labor problem, p a rtic u la r ly in small school
systems*
L egally, what i s th e b a sis fo r such use o f the property?
w i ? s H s m LEASES
U n iversity le a s e s are the subject o f enactment in only one
s t a t e , Pennsylvania, where* "Boards of School D irectors s h a ll have
power and au thority t o lea se any part of th e ir resp ectiv e school build*
in g s , equipment, and premises to any u n iv e r sity or c o lle g e of the Common*
wealth approved by the
S tate Council o f Education, for the purpose o f
conducting and m aintaining th erein u n iv e r sity or c o lle g ia te c o u r s e s ...."
Pertinent sohool board regu lation s or ju d ic ia l d ecisio n s are lacking*
OIL AM) CAS LEASES
The sta tu te s
In six s ta t e s of th e Union the subject o f le a se s
fo r o i l and gas has been not only the sub ject o f le g is la t iv e enact­
ment, but a lso the cause o f ju d ic ia l action*
In Kansas an amendment
W
WW* —I'.—***»**»— w *|I)»!»»*»«■»*■»»»
1
Sec* 627
i
* th e Sohool Laws of Pennsylvania
p* 8 8
1936,
Art* ?!
_i
rpassed on March 13* 1935 "authorises and empowers tho school d i s t r ic t “I
board to leas© i t s grounds or any part th ereof for d r illin g for o i l and
gas upon such to m s a t m y b© agreed upon*
Any money derived therefrom.**
provided no d r illin g i s located id th in one hundred f e e t o f any sohool
I
upon any such school grounds*”
t h is enactment n u l l i f i e s two previous
oourt d ecision s*
the Louisiana sta tu te i s almost id e n tic a l with th a t o f
$
Kansas* except th at i t s p e c if ie s “o il* .gas* and mineral le a se s* ”
The
absence o f rela ted school board reg u la tio n s or court d e c isio n s in th ese
s ta t e s may be due to th e recency of the enactments* M ississip p i* s en­
actment* the most recent o f th ose pertainin g t o th is subject* authorIces the lea sin g o f school lands fo r o i l and gas explorations*
A
sim ila r sta tu te in Ohio* more d iscretio n a ry In i t s nature, provides,
"When, In th e ir opinion th e school d i s t r i c t s would be b en efitted there**
by, the board o f education may make* execu te, and d e liv e r contracts or
le a s e s to mine ore, sto n e, co a l, petroleum, gas, s a lt , and other miner- 5
a ls upon land owned by the sohool d i s t r i c t * * * * ' 1
The Oklahoma s ta tu te ,
under certa in con d ition s such as newspaper p u b lica tio n , e tc * , ” **•
a u th o rises th e d ir e c to r s o f school d i s t r ic t s . . . to enter in to a v a lid
1* Sohool Laws o f Kansas Revised 1937 ** Chap* XX Art* 1
Sec* 227 p. 70
202 1^ *849 ^ ils o n Couzlty School D is tr ic t Ho* 100 v
Barnes Dec# 10, 1921
120 Kan* 670 Elks County Sohool D is tr ic t Ho* 116 v
Fleak Jan* 1926
3*
F ifteen th Compilation of School Laws, Louisiana Kov. IS36
p* 163
4* State School L eg isla tio n * Research D ivision o f Rational
Education A ssociation Oct. 1, 1938 Part I p. 5
6
* Ohio Sohool Laws 1934
Chap* 16 Sec* 7620 * % p# 362
88
rcontract to le a se land to m y person • *. for a term of years **. fo r
the purpose o f #**, or fo r o i l and gas development#
“1
This law does not
apply to a g ricu ltu ra l purposes * ” 1
J u d ic ia l In terp reta tion
The opinion o f th e Ohio Attorney General
was sought in 1829 in th e case where a sohool board leased , for o i l and
gas purposes, laud, t i t l e to which had been obtained under a deed con*
veying such land to the board, ”so long a s the same may be used fo r
sohool purposes#”
That such lea sin g was not contrary to th e terms o f
the deed was the opinion of th e Attorney General who h eld , " If, by
reason of operations under said gas and o i l le a s e or otherw ise, the use
o f such land fo r school purposes i s abandoned, then th e e s ta te and
2
in te r e s t of th e board of education in such land term inates. ”
cou rts adjudicated a sim ila r casei
The
where the board h eld land conveyed
with t h is lim itation * "do hereby grant, s e l l , and convey »«• said
lands t o be occupied for the purpose o f a school house and for no
other purpose whatsoever*”
The judge held that t h is deed conveyed
3
merely a tenure lim ited to continued use for school purposes# The
procedure for a school d is t r ic t t o follow in lea sin g I t s land for gas
and o i l purposes i s s e t out in an opinion o f an Attorney General o f
4.
Oklahoma* ~ His opinion was a lso sought recen tly on a question o f
the use to be made o f the funds derived from t h is source o f revenue*
1*
School haws o f Oklahoma 1935 Art* I I I Sec# 71 p* 23
2*
Opinions o f th e Attorney General (1829) p» 1246
3*' 56 Ohio App* 96 ieard of Education o f Lebanon V illa g e
School D is tr ic t v Hollingsworth e t a l Got* 19, 1936
L
4*
Opinions o f th e Attorney General Feb* 29, 1930
5*
Opinions o f the Attorney General Feb*
1, 1934
j
87
^@118 (o f the G arretts) even now draining gas from the school l o t ? - . . n
The le g is la t u r e i s presumed to have taken in to consid eration the
ob jection s to boring and operating w e lls on school property and to have
concluded th a t th e i l l s to be suffered would be compensated by the
advantages rece iv ed * ..* The board as w ell as the le g is la tu r e has acted
w ithin i t s ju r is d ic tio n .
The d isc r e tio n o f e ith e r body in such case
1
i s not o rd in a rily su b ject to ju d ic ia l rev iew .”
D espite the sta tu to ry s ile n c e o f Texas, the attorneys general
have been appealed to on four occasions for advice on t h is m atter.
In
the e a r lie s t opinion i t was h eld, "School tru ste e s may le a se grounds for
2
o i l and gas when such grounds are not in terfered w ith .”
Later the opinion
d elivered was, "Trustees may le a se sohool grounds for o i l and gas, and
3
the proceeds derived from such le a se s are lo c a l funds."
The la s t opinions
concern the d isp o sitio n to be made o f the "cash bonus and ren tal
4
accruing and paid a county for an o i l and gas le a se
and
the "funds t o be used for the expenses o f an au d it o f the o i l and
5
gas r o y a ltie s due school funds."
Where land had been conveyed to
the tr u ste e s o f the school d i s t r i c t , and where one Hughes had executed
a gas and o i l le a se , th e court held th at there was nothing in the
1. 100 W. Va. 714 Garrett e t a l v Board o f Education o f
Ohapmansville D is tr io t e t a l Nov. 26, 1930
2. Notes on fu lin g s of attorn ey General 1919 (The Hand­
book o f Texas School Law) p. 546
L
3. I b id ., 1921
p. 580
4. I b id ., 1930
p. 34
5.
p. 102
I b id ., 1931
J
88
s ta tu te s to prevent holding the property in tr u st for public sohool
purposes**
~l
. Notwithstanding the absence o f a Kentucky statu te* a case
reached the cou rts in which the fa c ts were sim ilar t o th e West V irginia
case*
The p l a i n t i f f argued h is case on the th e s is that lea sin g fo r o i l
was a conversion from educational purpose® to commercial purposes and
hence co n stitu ted an abandonment*
the court held# vQ il and gas are
fu g itiv e m inerals and i f the w e ll on the sohool lo t had not been d rilled *
i t s o i l would have been drained v ia the adjoining w ell and an e ffo r t
to g e t from i t s property* r e a l values for a more e f f ic ie n t adminis­
tr a tio n of school a f f a ir s would have f a i l e d , ”
"In the f i r s t place”,
said the court# nthe mere lea sin g of property to others fo r develop2
ment purposes i s not engaging in a commercial venture*1*
In general i t i s reasonable to conclude th a t in th ose states#
■where the land contains valuable m inerals, school boards are author­
ised to lea se school property fo r the purposes of d r illin g fo r o il*
,
g a s, and other m in erals, and sa id school boards w i l l have the support
of the resp ectiv e attorn eys general and the courts*
Wot one of the
school boards h as, however, deemed i t necessary to include any
reg u la tio n s for t h is purpose in i t s by-laws*
8.MBBS* Tvmmus
aw
m nm
the sta te of C a lifo rn ia has an unusual but somev/hat p e r ti­
nent sta tu te which provides:
i
124 Testa® 190
78 S*W (2d) 471
Independent School D is tr ic t
2*
.1924
20$ Ky# 376
202 S f 598
"Boards of tr u ste e s and c it y board®
w
„
. • _
Gladewater County Line
v
Nov* 28, 1934
William® e t a l
v
McKenaie
Feb* 19*.
fflif education sh a ll have the power and may, In th e ir d isc r e tio n , grade,W
pave, sewer . . . , and a lso may con stru ct in Immediate proximity to any
school**#, pedestrian tu n n els, sew ers, and water pipes in any s tr e e t
when required for school p u r p o se s.* ..”*
This grant i s an extrem ely
broad one, but i t i s contained in the A r tic le concerning the provision s
of which th e sta tu te s maintain!
"The Board o f Trustees s h a ll, in a l l
ca ses, be bound by the in stru ctio n of the d i s t r i c t m eeting, in regard
to the sub jects mentioned in t h is a r ticle* * .* "
Since there are neither
school board re g u la tio n s, nor court d ecisio n s relevan t th ereto , i t
apparently has not been the subject o f controversy*
TEACHERS* HOMES AED STUDENT DORM!TORIES
Statutory Authority
The sub ject o f "teachers* homes” has pro-*
vided the m aterial for controversy on more than one occasion*
Although
the problem o f a place fo r the teacher to liv e is most acute in small
communities, i t i s the subject o f le g is la t iv e enactment in many states*
Common sohool d i s t r i c t s in Minnesota "are empowered, when authoris­
ed by a tw o-third m ajority of the e le c to r s votin g a t sa id e le c tio n ,
to e r e c t .. . a dwelling house fo r the use of i t s teacher . . . provide d * ..* ”
The powers and d u tie s of d irecto rs o f second and third c la s s
Washington sohool d i s t r i c t s include the b u ild in g o f tea ch ers 1 cottages
when d irected by a vote o f the d i s t r i c t to do so.^
1*
Both the Attorney
School Code, State o f C aliforn ia 1937 Div* VI Bart X
Chap.
1
1931
2* haws o f Minnesota R elating to th e Public Sohool System
Sec* 87 p. 28
3.
1926-1931
p p . 362 - 7
laws R elating to Public Sohools and Sohool In te r e sts
Chap. 289 p* 35
>I©reral and the Superintendent o f Public In stru ction have been req u ests
ed to Interpret t h is sta tu te on th ree occasion s.
The Attorney General
has ruled th a t th ere i s n eith er express nor implied sta tu to ry au thority
fo r such con stru ction in d i s t r i c t s o f the f i r s t class*^ th a t d irecto rs
o f second and th ir d c la ss e s may provide su ita b le dw elling and aoeornmodations for tea ch er as w ell as fo r the sp e cia l supervisors and th e ir
a s s is t a n t s , e te * ,^
that f o r such purpose warrants cannot be issu ed
*
again st the general fund*
The d e c isio n s o f the Superintendent of
Public In stru ction have concerned the n e c e s sity for the au th orisation
by vote o f th e e le c to r s ,^ the use o f cash from the b u ild in g fund* but
n ot from the general fund,
B
and th e p roh ib ition again st the tr a n sfe r
o f funds, fo r th e bu ild in g of a gymnasium, w ithout authorisation*
In
t h is same s ta te the courts have also been required to adjudicate some
o f the d isp u tes.
The ru lin g upheld the v a lid it y o f the statu te and
in dicated th a t wonly school d is t r ic t s intending t o carry out the
fu n ction s of Chapter 129 are authorised to b u ild homes fo r tea ch ers. ■
The sta tu te o f Pennsylvania makes I t law ful "for boards o f
d ir e c to r s in fourth c la ss d is t r ic t s to purchase or b u ild a residence*#*
fo r the use o f the p rin cip a l, or tea ch er, or j a n it o r ..* , as sh a ll be
1* Washington Attorney General Opinions 1917-1918
2. Ibid *,
March 30, 1921
3« Ibid*,
May
p. 402
10, 1921
4* Code o f Public I n s t m o tio n - Annotated Sept* 4 , 1919
6* Ibid *,
Aug*
9,1922
6* Ibid*, Sept• 1S,1§22
i’
7. 119 Wash#
206 Pac*
691
827
Hansen v t e e
May 1, 1982
p*27?
91
"deemed a d v isa b le.# .#
such b u ild in g .’’*
"They may f i x and charge a ren ta l for the use of"1
"In any d i s t r i c t
[of North Dakota"] wher© two or more
schools have consolidated* the school board i s empowered, and upon a
p e titio n by a m ajority of v oters of the d i s t r i c t , i s required, to build
and equip a dw elling for the use o f teachers***, the same to be known .
p
as a teaoherage.
"Independent school d is t r ic t s and independent
con solid ated d i s t r i c t s [In South Dakota~] are granted the ad d ition al
power of erectin g such sehoolhouses, c o tta g e s, or dw ellin gs for
teachers* homes «•* as the board sh a ll deem necessary*”
Hot u n til
1934 did th e school d i s t r i c t s o f South Carolina have the power to
purchase or construct teacherages#^
"Homes for teachers may be con**
e
stru cted and m aintained,” according to Connecticut s ta tu te s .
"The
tr u ste e s of a l l school d is t r ic t s [in M iss lss ip p ilare custodians of the
sohool property and sh a ll have charge o f **• school b u ild in gs,teach ers*
homes*. . . ”
The sta tu te of T&soongin g iv e s
"the annual common
school d i s t r i c t meeting power to vote a tax • ** to b u ild , h ir e , or
purchase sohoolhouses or teaoherages or outbuildings and t o fu rn ish ,
equip, and maintain the same."'7
"The issuance o f s e r ia l coupon bonds
1.
The School Laws o f Pennsylvania
1935 Art#XIX Se©*6901 pp#342*S
2.
North Dakota General School Laws 1935 Part IV Chap* 30 S e c .507
p* 193
3*
Sec. 267
The Public Sohool Laws of South Dakota 1937 T itle V Art*II
p. 95
4* A Review of Educational L eg isla tio n 1933*.4
o f B ien n ial Survey
p. 16
5.
pp.52-3
Connecticut Sohool Document #2 1931
Chapter VIII
Chap# XII Sec*166 p*74
6*' Sohool Laws o f the S tate of M ississip p i
193D A rt.X IlI Sec*115
7* Laws of ?<Tisconsin R elating to Common Schools 1936 Chap.XI
Sec* 40*04
Paragraph 5 p. 482
J
92
' for the purpose of purchasing or bu ilding a teachers* home" i s author**- !
1 zed by Texas sta tu te upon m ajority vote of the q u a lifie d taxpayers
"provided no bonds *** to provide a home in a d is t r ic t employing fewer
than two teach ers in a s in g le s c h o o l # T h e h igh est court of t h is
s ta te d isso lv ed a temporary in ju n ction restra in in g the county superin­
tendent o f education and the school d i s t r i c t tr u ste e s from spending
funds for the con stru ction o f " liv in g quarters fo r the use of the teachers
o f the d i s t r i c t school*"^
The s ta tu te s of Hew York make i t the power
and duty of boards of union free school d i s t r i c t s , *to provide, pur­
chase, le a s e , furnish* and maintain b uild ings or other su ita b le accom­
modations fo r the use o f teaohers employed in the d is t r ic t when duly
authorised by a meeting o f the d i s t r i c t . . # #**®
West Virginia* s
enactment g iv es boards of education a u th o rity ,
sub ject to approval, to e s ta b lish and conduct a self-su p p ortin g dormi­
tory fo r the accommodation o f the pupils attending a high school under
i t s supervision and o f persons employed to teach therein#^
An addition­
a l s e c tio n p rescrib es r u les for the conduct of said dormitory#
Ifout ana1 s sta tu te i s sim ila r to Yfest Virginia* s in , th a t i t i s two­
f o ld , g ivin g "the boards the tr u ste e s power and making i t th e ir duty
to equip, operate, and maintain a high sohool dormitory #♦* fo r the use
1#
The handbook of Texas Sohool Law Hovember 1938 p. 43?
Public School Laws of Texas 1835 Chap. VI Sec. 161 p« 73
2.
41 S.W. (2d)
3.
Education Law 1934
4.
pp.39-40
21 Adams v
M iles Hov. 18, 1927
Art# XI
Sec# 310 Paragraph 22 p*
The School Laws of West V irginia
114
1935 A rt. VI Sec. 7
_J
th e teachers and/or p u p ils of the school."*
South Dakota*'a l e g i s - ”1
la tio n not only provides accommodations fo r teachers but a lso sanction s,
"In d is t r i c t s containing an accredited high school the school d is t r ic t
board . . . i s authorised t o e s ta b lish and operate not to exceed two
dorm itories in any school year fo r the boarding and/or housing of nonr e sid e n t p u p ils • ••>" provided that such action i s submitted to the
«
v o ters for approval a t any regular school e le c t io n .
the Nevada
school law empowers, "county boards o f education to provide fo r the
r e n ta l, purchase, or e r e c tio n , and the support, maintenance, and manager
ment o f a dormitory ••• fo r high school stu d en ts,” the said dormitory
to be considered part of th e regular high school equipment and organr
is a t io n .
In Clark County, "houses fo r the residence o f teachers” are
a lso au thorised .
ju d ic ia l Interp retation
The taxpayers o f a M ississip p i d is­
t r i c t challenged th e le g a lit y o f a vote to r a is e money "for the pur­
pose o f reb u ild in g , remodeling, repairing and equipping school b u ild in gs
and teachers* homes and furnishing same with a l l necessary sch ool supplies
The court declared the bond issu e in v a lid , on the ground th at those extras
fu rn ish in g s, e t c . , not authorised by sta tu te "were not harmless surplus­
age, nor could such power be said to be conferred eith e r exp ressly nor
<n*rmim
<mm<m**-*/*.w ae
1 . School laws of t o
paragraph 8 p. 27
T itle ?
T itle 7 Chap. 4
Sec. 83
State of Montana - 1935
Chap. 122 Sec *1915
Chap. 4 See. 83 Paragraph 2 p. 139
Paragraph 11 and15 p. 141
2 .The Public School haws of South Dakota
Sec. 2 and 4 pp. 111-112
3 . The School Code - S tate of Nevada
Paragraph 2 and 9 pp. 36-7
1937
1935
Chap. 102
Sec* 5715
94
^ y necessary im p lication ." *
In a somewhat p ertinent case in which the1
hank loaned to the tr u ste e s money, which they were not authorized to
borrow and which they used in paying fo r a teachers1 home, the receiver
tr ie d to c o l l e c t upon the hank’ s f a ilu r e .
Ihe higher cou rt, reversing
the d ecision o f the lower court, held th at such was im possible because
compliance w ith the sta tu to ry con ditions i , e . a vote of the e le c t o r s ,
was lacking#^
The Attorney General of Ohio, a s ta te lacking a relevan t s ta tu te ,
ruled th a t, "The board has no au th ority to use school funds to e r e c t a
residence fo r superintendents and teach ers nor t o remodel one o f the
old b u ild in g s in to a residence for superintendents and teachers
The opinion has never been in valid ated by le g is la t iv e a c t nor by court
d e c isio n .
Due to I l l l n o i s 1 lack of le g is la t iv e enactment the d ecisio n
o f 1873 has the foroe o f law a t p resen t.
I t was held in part, "*.#
such b u ild in g s [a dormitory and boarding house] are in no sense
necessary and proper fo r a public fr e e s c h o o l.11 In the absence of
l e g is la t iv e enactments on t h is subject in Michigan, proceedings were
brought to recover p ossession of a lower flo o r o f a school b u ild in g,
held unlaw fully by a former teacher who took p ossession in 1888 when
fee signed a contract to tea ch , the court ru led , "Occupation of the
premises was in cid en t t o , and deemed e s s e n tia l fo r , h is d u ties as a
m
•»«» mmmm
1.
Clark
138 Miss* 120
Board of Supervisors of Forrest County v
140 So
733
A pril 11, 1911
t I?
^*ss#
154 So
711
3.
I‘° l 0r ©t a l
v Love Superintendent of Bank
Opinions o f the Attorney General
1919
- p. 1326
J
The co u rts, too# adjudicated t h is question on the b a sis of the pro­
v isio n s o f the Enabling Act# in a dispute between the school d is t r ic t
and th e land o ffice* ^
In West V irgin ia the s ta tu te s give the school
boards a u th o rity , "using the same methods prescribed fo r the sa le o f
school b u ild in g s and len d s, to le a se for o i l or gas or other m inerals
any lands or school s it e s owned in fe e by i t * . ♦ *n®
This s ta tu te , in
e f f e c t , n u llif ie d a previous d ec isio n , where the r a t io decidendi was
based on th e meaning of "for school purposes o n ly .”3
the courts up­
held the le g is la tu r e in a case where a o lt is e n , who had property with
three w e lls adjacent, sought to en join the d i s t r i c t board from le a s ­
ing a lo t (which had been leased to board "for educational purposes
only1*)
to one tru stee# fo r the purpose of d r illin g and operating w e lls
fo r g a s , o i l , and water*
Hie p la in t if f was aggrieved because he fo re­
saw th a t such a le a se would u ltim a tely r e s u lt in th e draining o f gas
from h is property*
I t was held in a previous d ecisio n , on which he
r e lie d , th a t the board had no such power, that such leasin g " is u tte r ­
ly fo reig n t o the purposes o f education'*,
not engage in b u sin ess.
4
and th at the school can*
The court denied h is con ten tion , because
such power had la te r been conferred by statu te*
In in terp retin g the
sta tu te i t was h eld , ’’U ndoubtedly a w e ll on the school lo t would drain
gas from the adjoining te r r ito r y •
But are not the th ree e x istin g
1* 166 Okla. 226 S*D • Ho* 23 of Okfuskee County
Commissioners o f Land O ffice Hov* 21, 1933
2*
C o.,
v
fhe School Laws of West V irgin ia 1935 Art* V Sec* 7 p* 28
5* 135 8*12* 399 Vnited Fuel Gas Co*, v Merely O il and Gas
O ct. 19, 1926
4.
65 W. Va.
766 Herold
v
Board o f Education
June 11,1909
96
1teacher * "that there was no ren t and that i t m s cle a r that the purpose1
o f the occupancy was to enable the employe© to b e tte r perform the service
o f h is employer**
Since th a t time a s ta tu te , “givin g th e d i s t r ic t
power to maintain teachers* homes upon a m ajority vote of the q u a lified
school e le c t o r s ,“
has been enacted*
I t s c o n s titu tio n a lity was a tte s t*
ed in 1924, when taxpayers protested the d i s t r ic t board* s vote to r a ise
e ig h t hundred d o lla r s t o b u ild a teacher®* residence*
In modifying the
decree o f the d i s t r i c t court i t was h eld , “Although the board did not
.comply by submitting plans and s p e c ific a tio n s • •«, y e t sin ce th e build*
Ing is now enclosed but unfinished and sin ce upwards o f six hundred
d o lla r s has been spent on the b u ild in g, we th ink , i f i t d esir e s to do
s o , th a t the school d i s t r i c t should be permitted to complete the b u ild ing i f i t proceeds le g a lly to accomplish this***
s
For the provision o f su ita b le dw elling p laces fo r teach ers,
f if t e e n s ta te s have passed the necessary le g is la tio n *
Five o f the said
s ta t e s require au th orisation by a vote o f the school © lectors before
such dw elling may be provided*
Two s ta te s , West V irgin ia and Michigan,
require the approval of the c h ie f s ta te school o fficer*
such use i s prohibited*;
In two state®
in I l l i n o i s , by court d e c isio n , and in Ohio
by attorney general opinion*
three s ta te s , West V irgin ia, Montana, and
South Dakota have l e g is la t iv e enactments authorising teacher and student
dw ellings*
One s t a t e , Wevada, provides for a dormitory for high school
rnm.mt •iw'ct*** *k*M* *•**•»**>**
la tsc h e
1. 106 Mich* 330
* Sept• 1895
School D is t r ic t !o* 11 of Alpine Township v
2* General School law® * State o f Michigan 1936
Sec* 762? p. 163
l192A
3*
“ 1“h '
1**W* 159
U lrich
Chap* 29
* Fractional Sohool D is tr ic t #5
O ct.6,
r students on ly , except In Clark County where homes for teachers are a ltJ
authorised#
The underlying p rin cip le i s palpably one o f need, which has
been recognised by several s ta te le g is la tu r e s and which has been upheld
by the c h ie f s ta te school o f fic e r s , the attorn eys general and the
courts*
A ll of these powers have been reluctan t to term suoh use com*
m ercial and have seen f i t to i n s i s t on the board*s le g a lly proceeding
to accomplish i t s purpose*
school board regu lation s make no mention
o f t h is use o f school property# but the nature of the use almost makes
ru les fo r execution unnecessary*
BERTING- PROPERTY FOE SCHOOL PURPOSES
Heither le s s important* nor le s s con troversial i s the sub ject
of the ren tal o f property fo r school purposes*
The Indisputable fa c t
i s th at in small communities th e school d is t r ic t may not always possess
adequate f a c i l i t i e s fo r housing the school*
The ren ta l asp ect of the
situ a tio n renders i t commercial# but in many o f the ca ses adjudicated
in the courts an a lle g e d , p o lit ic a l or sectarian use has been so in ter­
woven with a commercial aspect th a t, to avoid d u p lica tio n , cross
referen ces to th e chapter containing a f u lle r account o f the subject
under consideration# w i l l be found in the fo o t notes*
The Statutes Interpreted
For the purpose o f securing adequate
rooms or b u ild in g s in which to hold c la ss e s when a d is t r ic t does not
possess such f a c i li t i e s # many sta tes have enactments perm itting or
requiring the resp ective school boards to ren t or lea se the necessary
fa c ilit ie s *
An a c t o f the I l l i n o i s L egislatu re g iv e s the boards
pe m is s i on ”to rent b u ild in g s, rooms and grounds fo r the use o f the
m
S ch o o ls or for the purpose o f school ad m in istration. ”* Befor© the
^
passage o f th is a c t a cage, p ro testin g the ren tin g fo r ter years# for
t h is purpose# o f the hasemen t of a church under Roman C atholic con trol,
m s brought before the d ls t r lo t court in St* C lair County*
missed fo r lack o f cause for complaint#
I t was d is -
Ihe v o ters had previou sly de­
feated a b i l l to issu e bonds and to e r e c t a schoolhouse.
The lea sin g
m s* th er efo re , termed necessary fo r the discharge o f a public duty*
p
lorn sta tu te s give the boards perm ission, "when n ecessary to ren t a
room and employ a teacher* where th ere are ten children fo r whose
accommodation there i s no school house*"^
The remedy for a school
board’ s fa ilu r e to provide school accommodations was held not to be
4
c e r tio r a r i in one case*
The board’ s rig h t to rent the premise was
j£
upheld in another;
while the board’ s power to do so was held d is ­
cretionary in s t i l l another case*6
In the most recent case involving
th is su b ject m atter, th e court h eld , ’’The d isc r e tio n o f a school board
to ren t quarters su ita b le fo r school purposes i s not an unbridled d is­
cretion* .*
At a meeting o f the board o f d irecto rs a reso lu tio n had
1.
The School haw o f I l l i n o i s , 1955
2*
121
8*
Iowa Schoolhaws and D ecisions - 1935 Chap*226 Seo* 4374 p»253
111* 297
4*
i_
M* M illard
v
Sec* 135
p* 77
Board o f Education Jan* 25,1887
Molyneaux
v
Molyneaux March 8, 1906
v Burns
5*
i t l ° T 32a
12 I? *sw• 760
Scripture
6#
70 Iowa 102
30 E*W* 38
Aananson
v Anderson Oct* 28, 1886
7*
182 lorn 691
166 ff.W* 202
Knowlton
v Baumhover Jan* 18, 1918
June 18, 1882
_i
!been adopted, which provided th at because o f th e inadequacy o f the
“1
d is tr ic t* s sch ool b u ild in g , and for the purpose o f saving expense, an
upper room In a two sto ry b u ildin g
should be rented for school purposes
a t a c o s t of two d o lla r s and f i f t y cen ts per year fo r ten years.
public school b u ild in g was la te r disposed o f and sold*
The
The d ecisio n was
based, in large p art, on the r e lig io u s aspect o f th e controversy,^
th e Minnesota code provides, ”when necessary the school board
o
sh a ll le a se rooms fo r school purposes.”
A general grant in the
Nevada s ta tu te s "gives the school tr u ste e s power and makes i t th e ir
duty to b u ild , purchase, or rent schoolhouses, idlen d irected to do so
by a vote of th e heads o f f a m i l i e s .* .,”^
In New York "Ihe tru stees
have the power and i t sh a ll be th e ir duty to h ire tem porarily such
rooms or b u ild in gs as may be necessary for sohool purposes,"
boards
In c i t i e s ,
* are required to do so when the rooms in th e schoolhouses are
overcrowded*.”^
school o ffic e r s *
Many appeals have been heard by New York* e c h ie f sta te
The Board o f Education of Niagara, in 1887 took over
S t. Raphael's Catholic school a t a ren tal of one d o lla r per year*
The
S u p erin ten d en ts ru lin g maintained th a t the ren ta l was le g a l but.based
c
the la t t e r part o f h is d ecisio n on sectarian use of schools*
Such,
m-mmmm
1*
1931
**mmm
For R elig io u s aspect o f case see Chap, 1? p. 188
2* Laws o f Minnesota r e la tin g to the Public School System
Sec* 114
p. 81
3* Ihe School Code *• S ta te of Nevada 1935 Sec* 5715
paragraph 9 p* 37
4* Education Law 1834 Art* X Sec* 275
and Art* XI Sec* 810 Paragraph 7 p* 112
S*
Education
J u d icia l D ecisions
March 24, 1887
p* 533*8
Paragraph 4
Leander Colt v
p. 98
Board o f
99
liow ever, was not th© d ec isio n o f Superintendent Skinner nine years
la te r , when he held such a le a se i l l e g a l because the board had control
o f the rooms from nine to four only*1
The Superintendent*© help was
again sought in t h i s case s ix months later*
Meanwhile, the c it y of
W atervlieb had taken over the town o f Troy; but the cond ition s previous­
ly complained o f s t i l l persisted*
Repeating h is d eo isio n , the Super*
intendent withheld a l l funds pending compliance.®
In 1895, 1898 and
1902 Superintendent Skinner was appealed to under p r e c is e ly the same
circum stancesi in which ca ses he r e ite r a te d , "Only temporary renting
i s p erm issib le, and can the re fore.- be resorted to only in an emergency.”®
The last-m entioned appeal was then brought to courts fo r adjudication,
but the question of sectarian use was the paramount is s u e .
In three separate se ctio n s of th© North Dakota code, may be
found authority for c i t y , independent, and sp ecia l school boards to
rent such school b u ild in g s or schoolrooms as they deem proper*^ Many
c o n stitu tio n a l questions were raised in a case argued where separate
rooms had been leased fo r a term o f years in St* Joseph*© Convent, in
accordance w ith an e le c tio n held*
Ihe court held; nThere Is n ot, indeed,
to be found anywhere In the s ta tu te s any authorization for th e lea sin g
o f a building fo r sohool purposes . . . when there I s already in the school
1 , Ibid*, p« 538-554 Durant
Nov* 25, 1896
4
!_
v
Board o f Education West Troy
2* Ibid*,
p* 554
Kennedy
v Board of Education May 15, 1897
3* I b id .,
Ibid*,
I b id .,
p, 560-8
p* 568
p* 672
Keyser
v Board o f Education Dec,2 3 , 1898
Lockwood v Board o f Education Mar*31, 1898
F erris
v Sylvester
Apr*16, 1902
4.
General School Laws North Dakota - 1938 Sec* 164 Paragraph
p. 68, S ec. 196 Paragraph 2 p. 77 Sec. 831 p. 202
100
d i s t r i c t a school which i s owned by th© d i s t r ic t , which i s w ithin two
and on© h a lf m iles of th© stu d en ts and which i s adequate fo r th© needs
o f th© d is tr ic t#
A very general grant in th© Wisconsin Cod© Ogives power to the
annual common sohool d i s t r i c t meeting to vote a tax to
purchase school houses or .* . ."^
h ire or
A fter th© hoard had rented rooms in
a parochial school in the town of Luxemburg for twenty years, an in­
junction was sought again st such practice*
h eld ,
Cpon appeal th© court
"*.*the school d i s t r ic t has express power to vote a tax to h ire
a ©choolhouse *.*.
We fin d nothing eith e r in the expression or in the
p o licy o f the s ta tu te s to prevent** *
"Fai rl y and reasonably con­
strued, t h i s d isc r e tio n i s s u ffic ie n t to enable th e d i s t r ic t to maintain
a common sch ool in th© parochial school b u ild in g , and i t s d isc r e tio n
*
in that regard should not be con trolled by th© court*11
Boards o f Education in Ohio "are empowered *** to rent su ita b le
school rooms*t**”4
In t h is power they wore sustained by an opinion
o f th© Attorney General in 1915*®
In a recent ca se , where a c it y board
o f education had leased rooms for public school purposes from a church
and paid the ren t th erefo r, the Attorney General held, In part, th a t
the lea sin g o f and paying ren tal th erefo r was not aid to a sectarian
<■»«# m m ** m * mm-mmm* m* *m m * * * * * * *
1* 36 NiD• 288 Pronovo st v
March 3, 1917
Brunette - D irector S*D. Wo* 40
2* Law o f Wisconsin R elating to Common Schools 1936 Chap.40
Sec* 40*04 Paragraph 5 p# 482
3#
Dorner e t a l
Nov* 27, 1908
L
v
School D is tr ic t |6 Luxemburg
For R elig io u s Aspect see Chap* IV
4.
Ohio School Laws
1934
Chap. 16
8.
Opinions o f Attorney General
1915
p. 167
See* 7620
p. 1289
p. 357
j
'in s titu tio n *
*££ authorized by a m ajority rote o f the leg a l v o te r s.* !1
d i s t r i c t boards
[In QregorTj
shall**# le a se echoolhousea."
C ity school
boards in V irgin ia ’’are authorised to lease* purchase* or build such
houses [school housesf according to th e exig en cies o f the c it y and the
means a t i t s d isp osal." ^
On th e contrary* every board o f d irecto rs in
Washington ’’i s authorized and empowered by sta tu te to rent* repair***
schoolhouseswi
whereas th© s ta tu te s o f Wyoming; provide* ’’the q u a lified
e le c to r s of th© d is tr ic t* when assembled* sh a ll have power . . . to build*
ren t, or purchase a schoolhouse*• .
A general s ta tu te in Arizona and
one in Colorado au thorizes boards to manage and control* ren t etc**
sohool property.®
C a l i f o r n i a st at ut e authorizes "and in th e ir d is ­
cretio n ren t” * Vermont* s Is lim ited "and sh a ll -when so authorized by
the town d is t r ic t have power to le a se " •
F lorid a*s* which d ir e c ts "ihe
supervisor to supervise the construction* rental* and-repair of school",
and A rkansas's, "to pur chase* b u ild , or ren t schoolhouses*1 complete
the l i s t of le g is la t iv e enactments*
Although there i s no le g is la t iv e enactment on t h is su b ject in
the Kentucky code* tr u ste e s leased church property for school purposes
1.
Oregon School laws 1931 Chap. XI
Sec* 35 - 1103
Z*
V irgin ia School Laws 1936 Chap. 35 Sec. 786
p. 4?
Paragraph 10
p. 66
3* Laws R elating to Public Schools and School In te r e sts
Chap. 57 p. S
4# school Laws o f the State o f Wyoming 1933 Chap* IV Sec. 183
Paragraph 5 and 6 p. SO
S.
Paragraph
.4
p. 88
School Laws o f Arizona 1931 Chap* XXI A rt. IV Sec. 1011
8 p* 49
School Laws of State o f Colorado 1933 Sec. 171 Paragraph
m
'"for a ren ta l fee#
the p ro test m s lodged, and most of the court’ s
reasoning based, upon the r e lig io u s Issue involved!
but the court did
postpone the date o f enforcement u n til the end o f the school year*1
The ex ig en cies of the s itu a tio n , in idrieh school d i s t r i c t s may
fin d themselves vfoen lacking school f a c i l i t i e s ! has been recognised
in eighteen s ta te s o f the union#
’i
S
In th ese oases adequate provision
has been made fo r ren tin g and lea sin g su ita b le quarters! two of the
s ta t e s require a vote authorising such ren ta l and a th ird empowers the
assembled e le c to r s .
be temporary*
Hew YGrkf s sta tu te s p e c if ie s that such ren ta l sh a ll
Sohool o f f ic e r s , attorn eys general, and courts have been
appealed to in con troversies over what might appear to be a very harm**
l e s s , necessary makeshift*
The general conclusion i s th at # i l i e much
d isc r e tio n i s perm itted, i t may not be unbridled and must always be
w ithin statutory authority*
Pertinent school board regu lation s are
lim ited to Philadelphia*s d elegation of th is duty to the Committee on
Property#
g
REBTIKG SCHOOL PROPERTY
Statutory S ilen ce
The schools* renting or lea sin g of th e ir
f a c i l i t i e s to o u tsid ers c o n stitu te s another phase of t h i s problem*
Many school codes are s ile n t on th e ren tal of such p ro p erties.
Such
i s the case in Alabama and Oklahoma where boards o f tr u ste e s are given
1*
17g ly* YDS
191 S,W. 807
Stanton School D is tr ic t
Art* XI
t_
2*
W illiams
et al
Feb* 6, 1917
v
Board of Trustees of
See Chapter 11 p* 208
By-Laws and Rules o f the Board o f Public Education - 1938
Sec* $ p* 11
rpower 11to authorize the use of the schoolhouse" for oertain purpose s.
Suoh i s a ls o th© ease in Arizona, y e t in answer to a. l e t t e r addressed
to th e A ttorney General, regarding ren ta l of sohool property i t was h eld ,
"*.* I t i s true th a t boards of tr u s te e s cannot use sohool property for
purposes other than sohool purposes and a c t i v it i e s in cid en t thereto#-
It
i s common knowledge th a t boards o f tr u s te e s may and do in f a c t l e t school
property fo r hire# as where sohool b u ild in gs are rented for the purpose
2
of conducting r e lig io u s se r v ic e s th e r e in , or m usical con certs*.
In a l l , there are tw en ty-five s ta te s whose sta tu te s make no s p e c ific
mention of "commercial use” as such, and make no p rovision for any
r en ta l o f th e school property in s p ite o f th e fa c t th a t they do author**
is© a wider use o f th e sohool plant for oertain d e f in it e purposes*
In
ad dition to those previou sly mentioned they are as follows* Colorado,
Delaware {which s p e c if ic a lly mentions "free u se" ), F lorid a, Georgia,
Idaho, I l l i n o i s , (tfoich s p e c if ic a lly mentions fr e e uge in c i t i e s having
a population greater than f iv e hundred thousand), Louisiana, Maine,
Maryland, M assachusetts, Michigan,. Ml s s l sslp p l, Nebraska, Nevada,. New
Hampshire, North Carolina, Rhode Island, South Carolina, Tennessee,
Vermont , Washington, and dom ing *
J u d ic ia l Authority
In one of th ese states* Arizona, the b u ild ­
ing o f a stadium was a lleg ed a commercial use o f school property.
In
upholding the d is t r ic t * s rig h t to e r e c t the stadium the court resolved
«#•■«• «#**» rnm < 0 * 0 * mm w» mm
m .m — W
1 . Alabama S ta te School Code 1927 Art* VIII Sec* 104 and 187
pp. 72-3
School Laws o f Oklahoma 1935 A rt. I l l Sec* §5 p« 21
2* School Laws o f Arizona *» Opinions o f Attorney General
May 29, 1930 p. 228
104
i~the question*
"The matter then for our determ ination i s whether a
”1
stadium i s a sehoolhouse w ithin the p rovision s of paragraph 2736
i . e . , whether i t is a b u ild in g which i s appropriated for a use permitted
1
by the law to public s c h o o ls .”
A Florida case concerned th e con*
veyance o f school property to the United s ta t e s , without consideration
fo r use in the e rectio n o f a post o f fio e b u ild in g , vhich i t was a lleg ed
would enhance the value o f the remaining property*
h eld , the county
This the court
board of education was without authority to do and
permitted th e taxpayers to enjoin such, conveyance*^
Recently the
courts o f Georgia were required to formulate a d ecision on an unusual
in ter p r eta tio n of commercial use of the schools*
The c ity o f Savannah,
i t was maintained, was operating (not renting) ”an opportunity school**
from 8;30 A.M. to 6*30 P . M w h i c h sohool was attended by students
ranging in age from fourteen t o f i f t y years*
In t h is school they were
taught bookkeeping, stenography, and typewriting*
The p l a i n t i f f ,
operator o f a business sch o ol, sought r e l i e f because her income was
lessened^
her sohool*
when students attended the free school rather than patronise
In denying r e l i e f the court concluded, nAnyone who might
conduct p rivate sch o o ls in the c i t y o f Savannah might contend with equal
reason th a t the p u b lic schools were In terferin g with the p rivate schools*
Undoubtedly i f there were no public schools there might be more and
larger p rivate sch o o ls!
but so long a s the board o f education i s act*
****** m-mtm* m * * m * * m ** ********
1
.
2#
31 Aria 503
Alexander
264 Pac, 1056
}?? S?#
Harvey
101 Fla* 273
*
Sarasota County April 21, 1931
v
P h illip s
A pril 11,1927
v Board of Public Instru ction of
J
' ing w ithin i t s le g a l r ig h ts , th e e f f e c t o f such schools on p rivate
i
sch ools cannot be considered **1
^
^Commercial use* was a lso a lleg ed in two very old c a s e s, adjudi­
cated in the sta te o f I l l i n o i s * The school board borrowed money, purchas­
ed grounds and erected a b u ild ing!
which was leased-w ithout rent to
Winnetka Academy, and la te r to th e U niversity of Chicago*
The court ruled
th at such donation or lea sin g without rent to a private corporation was
beyond the purpose o f the L egislature*^
In the second case the court
declared the sale o f land conveyed for school purposes ille g a l*
A le g iti­
mate sch ool purpose, but not a sp ecial school purpose was deemed n eces­
sary*®
More than th ir ty years la t e r , school d irecto rs rented an un­
occupied, unused part of a school bu ildin g t o certa in fra tern a l s o c ie tie s *
I t was ex p ressly understood th at the le a se s were contingent upon the
needs'Of the premises fo r school purposes*
Ttien protested in court i t was
h eld , ^Lotting of th e premises was only temporary w ithin a reasonable
construction of the s ta tu te , the lodges being tenants at sufferance
under th e ir le a se and under the law*. . *w^
S t i l l more r e c e n tly , ren ta l o f
school property was declared i l l e g a l by the courts*
I t was an alleged
conspiracy th a t has l i t t l e bearing upon the p rin cip le in question*
F5
fhe
most recent case in t h is sta te involved the ren ta l of a sohool auditorium,
mm mm mmmm mm mmmm tmmmmmmmrnm mmmmm m —
1* 177 Ga* 166 Worth
June -14, 1933
v
Board o f Education - C ity of Savannah
2*
68
3*
71 111* 546 Trustees o f School Town 16 v Peter Braner 1874
4*
111* 830 Joseph Sherlock e t a l v V illa g e of Winnetka 1873
145 111* App. 523 William A. Lagow v John H ill Sept* 1908
5* 231 111* App* 501 People of State o f I l l i n o i s v Either and
Kaup Jan* 1924
106
-Tor a fee o f tw en ty-five d o lla r s, to a ohurch so c ie ty for the purpose ^
o f holding an entertainment#
th e d e c isio n , in p art, maintained*
"The
use o f sohool b u ild in g s fo r such purposes i s not out o f haraony with
the o b jects fo r which sch ools are conducted, but stim u lates and fo ste r s
the In te r e sts o f th e p u p ils and patrons and premotes th e e f fic ie n c y of
the public schools*
I t m atters not whether th e charge o f tw en ty-five
dollar® was fo r the use o f the auditorium and a mere in cid en ta l charge
to reimburse th e board of education fo r lig h t , h eat, e t c * , or whether
i t was purely for p rofit#
Two ca ses, whose d ec isio n s are applicable to th e point in question,
were a lso argued in a sta te (Louisiana) maintaining sta tu to ry silen ce#
The sohool board, in the more recent case, authorised i t s president to
le a se a part o f i t s playgrounds fo r a term of te n years a t a ren ta l o f
ten d o lla r s per year#
An in jun ction m s sought against the erectio n by
the le s s e e of a building in # iic h , i t was a lle g e d , he was to carry on a
m ercantile business#
The cou rt, reversing the lower court, brushed asid e
the question of h is running a c a fe te r ia therein for the service and con­
venience o f p u p ils, and continued, "The question i s whether the school
board had authority to lea se the school property and d iv e st themselves
o f the con trol thereof as was done#" The court concluded, nThe school
board cannot resume t h e ir au th ority i f the le a se stands, u n til the
ex p iration of ten years*#*#-A school board does not have power to lea se
grounds acquired fo r sohool purposes unless i t i s fo r an in cid en ta l
1*
Sept* 1927
i_
246 111* App# 469
Mary Lincke
v Moline Board of Education
_I
107
rpurpos©*”*
An in ju n ction was ©ought# in the e a r lie r case* against th?
c i t y a u th o r itie s who, i t m s alleged# under cover of a pretended lean©
to th e school janitor# used th e auditorium a s a theatre#
The givin g of
th ea trica l# o p era tic, m instrel# and other performances was carried on
as a b u sin ess when th e bu ildin g was not in use for sohool purposes*
Th© r e l i e f was sought by the owner o f a lo ca l opera house# whose income
had been g r e a tly diminished by t h is us© of the property#
The e th ic s
o f the th e a tr ic a l question was discussed a t length# but the le a se was
declared ‘“f i c t i t i o u s and simulated#** At the same time th e court re*
Itera ted th a t school property might be rented for some in cid en ta l us©#
but for no other purpose*
The question o f le a sin g property# recen tly adjudicated in the
cou rts of lain©# a lle g e s a most unusual form of abuse*
By a 1935 a ct
of the L egislatu re the “Brunswick Sohool D is tr ic t was created a body
p o lit ic and corporate w ith the purpose of m aintaining a secondary
school with the rig h t to le a se or l e t said property to said town#” I t
was argued that becuase o f th© town*s present indebtedness# and i t s
being c o n s titu tio n a lly prohibited from borrowing th© necessary funds
fo r erectin g the sohool# th e a c t was u n con stitu tion al sin ce i t had no
purpose except to make i t p o ssib le fo r the tovm to acquire for i t s
use the said physical structure*
The court ruled otherwise# saying#
"The property held by school d i s t r i c t s for public us® i s subject to
such d isp o sitio n # in the promotion of the o b jects for which i t i s held,
a®
wsetMpM**
mm *e
'ML**'*
139 So
feb* 8 , 1932
2*
IS#1902
692
217
P resley
■
v Vernon Parish School Board
108 La* 677 .j^i^ore Sgmuel and Sugar v City o f Monroe June
32
961
ras the supreme le g is la t iv e power may see f i t to make• ” ^
1
Early in 1909 the cou rts o f Maryland considered the question of
r e l i e f prayed fo r by two taxpayers, owners o f the ‘’Lyric”, who complain*
ed that they had been deprived of t h e ir income because they were unable
to en ter in to com petition w ith the Fourth Regiment Infantry*
Said
in fan try had leased an abandoned sohool, which they rented for con certs,
m eetings, and other gatherings o f p rivate o itlte n s *
In affirm ing the
d e cisio n of th e lower court , i t was h eld, ’’“This i s but the temporary,
casual and in cid e n ta l use of unused public property, done in the p ractice
of a public economy to avoid lo ss of revenue upon such unused public
property, and to lig h ten thereby th e general burden of taxation*”
r e n ta l o f school property in th e town of East"Greenwich,
$he
Rhode Island
was j u s t if ie d by th e defendant on th e grounds th at the said property
(conveyed for school purposes) had been abandoned because the school
d i s t r i c t had closed i t from 1902 to 1910| i'wh^’th ere was: an insuf*
f ic ie n t number of ch ild ren for whom to maintain school*
The court de~
cla red , ”We do not fin d , under those circum stances, any such abandon*
ment or cessa tio n o f th e use o f th e premises for school purposes as
would warrant a fo rfeitu re*
I t i s m anifest that there was a t most
a temporary ce ssa tio n of the actu al holding of school in the sohool*
house fo r reasons o f expediency.”®
«*•«*
I.
mmmm
134 Me* 414
187 A 703 K elley e t a l v Brunswick School D is tr ic t Sept.
28, 1938*
2*
G ottlieb * Knabe & Company e t a l v Charles F*
rX
Maoklen
A*
Jan. 30, 1909
3* 34 R .1 . 533 Town o f East Greenwich v Napoleon Oimmons
Nov* 28, 1912
109
r
Money m s voted a t a d is t r ic t meeting fo r the purpose o f con-
s true tin g a schoolhouse in a Vennont d is tr ic t#
^
A charge of i l l e g a l i t y m s
made because o f th e n o tic e given fo r the meeting and because o f the b u ild ­
ing p lan s, which co n sisted of a h a ll fo r town m eetings, lectu res* r e lig ­
ious m eetings, etc#
The reasoning of the court i s enlightening*
*!t
i s w ith in the province o f a sohool d is t r ic t to provide such b u ild in gs
and rooms including a h a ll in connection with a schoolheuse, designed to
accommodate..#, and such other th in gs a s are proper and customary in
connection with d i s t r i c t sdhools*
But i f the design was to use the
occasion of b u ild in g a schoolhouse as a p retext for making a public h a ll,
fo r purposes disconnected with the schools of the d i s t r i c t , then the
d i s t r i c t was doing what i t had no le g a l authority to do.
While i t would
not be lawful to make rooms for the mere purpose of r e a lisin g p r o f it ,
by renting fo r pay, i t
would not be unlawful for the d is t r ic t to receive
pay and p r o fit for th e use of rooms le g itim a te ly made for sohool pur*
p oses, when not in use
for these purposes and when they may be used for
other purposes without detriment to the d i s t r ic t in respect to i t s
sohool.
The opinion c f the Attorney General o f Washington has been sought
fo r in te r p r e ta tio n s of t h is statu tory silen ce*
Concerning the renting
o f a schoolhouse for operating a dance he ad vised , ’’The d irecto rs o f a
school d i s t r i c t of the th ird c la s s have no au thority to rent a school*
house to a th ird party for the purpose of operating a dance fo r p r o f it .”^
1. 43 Vt# 207 Thomas Greenbacks
2* Attorney General Opinions
v Henry Boutwell Hovember 1870
1910*20
p. 334
J
110
In another dispute he maintained, "The d ir e c to r s o f a sohool d i s t r ic t ^
have no au thority to lea se the school grounds for a ball-park to be
operated a s a p rivate commercial e n terp rise, sin ce under t h is sectio n
the use o f sohool property for recreation purposes must be free#1*
A r e la t iv e ly recent case in Wyoming demonstrates an extremely
broad construction o f th e statu tes*
The a ctio n was in s titu te d by a tax­
payer to restra in the school board and tr u ste e s from lea sin g or per­
m ittin g th e use o f property o f the school d is t r i c t for h ir e , or other­
w ise, fo r dances and fo r any purpose other than school or educational
purposes*
deferring to th e numerous d ecisio n s to which i t had been
c ite d , the court d eclared, "It may be here observed th at th ese d ecisio n s
were rendered in the s ta te s where the powers of school d is t r ic t are not
by law made a s broad as those conferred upon lik e corporate bodies in
2
dom ing*. •♦ "
The court based i t s d ecisio n on that sta tu te which
provides, "The q u a lifie d e le c to r s o f the d i s t r i c t , tsfeen assembled,
s h a ll have power • • • to d ir e c t the s a le or other d isp o sitio n to be made
o f any schoolhouse**# *"^
Said the court, "One of the w e ll e s ta b lish ­
ed meanings o f the word 'dispose* i s *to assign to a u se*•"
In r e c a ll­
ing how the le g is la tu r e s over a period of s ix ty years had thought i t
quite safe t o permit the use of d isc r e tio n by the resp ectiv e school
1*
g#
County
Attorney General Opinions May 10, 1921
43 Wyo* 3*76
5 P (2d) 267
Nov* 2 4 , 1931
Merryman v Sohool © istr io t
No* 16 e t a l Crook
3* School Laws of the State of Wyoming 1933 Chap#
Paragraph 5 and 6
p* 60
IV Sec*183
J
b oard s, the court continued* "With th a t d iscre tio n we must d eclin e to
in te r fe r e in the case a t bar* fo r in our judgment the law d efin in g the
power o f a school d i s t r i c t has not been transgressed*”^
Sohool Board Buleg
In the fourteen ca ses adjudicated in s ta te s
having no s p e c ific sta tu to ry authorization for the ren ta l o f sohool
property, there has been some lack o f unanimity in the d ecisio n s renderedf
but the weight of authority would seem to in d ica te th a t, barring
oases o f conspiracy, and attempted evasion of the law, the courts have
been most generous in th e ir in terp reta tio n of the s ta tu te s , and most
u n w illin g to brand as a ’"commercial use” any ren ta l o f school property
which serv es a community purpose*
The study of school board regu lations
in such s ta te s i s an in d ica tio n o f how school d i s t r i c t s in terp ret such
silen ce*
Four of the d i s t r i c t s studied in Alabamai
Bessemer, Birming­
ham, Decatur, and Mobile have s p e c ific regu lation s (not a l l printed)
governing the r e n ta l o f school property*
Dothan makes no such use and
Anniston su sta in s the statutory silen ce*
In extenuation of the d i s t r i c t 1s
ren ta l charges, the superintendent o f Mobile remarks, "To the winds with
such statem ents as * school p la n ts should be used twenty-four hours a day
fo r community b e n e f it s ’ * Our school b u ild in gs and premises are dedic&ted to use fo r childhood and youth b e n e fit, are used for t h is , and charg­
ed for when l e t for other purposes*"
The reg u la tio n s o f Colorado’ s d is t r ic t s vary.
are s ile n t on th e subject# "So public
mm m
school b u ild in g
Boulder*s ru les
sh a ll be rented
m m m m m m m m m -— — —
1*
43 Wyo. S76 ^
S P* (2d) 267
County Nov. 2d, 1931
Merryman v School D is tr ic t Ho* I t Or©ok
*
112
! or be permitted to be used or occupied for any other purpose than for ^
the b e n e fit o f the sch o o ls” in Colorado Springs**
Denver s p e c if ic a lly
permits the ren ta l o f b u ild in gs for oertain purposes under an elaborate
s e t o f ru les banning th e promotion of any commercial in te r e s t or p rivate
gain .
2
th e Colorado Springs 1 by*.laws a lso prohibit the ren ta l by
janitors^ without perm ission o f the board, o f any part of ihose houses,
owned by the d i s t r i c t , in which th ey liv e*
The Hew C astle, Delaware
r eg u la tio n s provide fo r a "charge s u f f ic ie n t to pay incurred expenses,
s
when the use i s granted for other than public sohool work*”
The
S ta te Department has ruled that such a charge i s not a v io la tio n o f the
sta tu to r y "free use" r u le ,
th e Wilmington by-laws req u ire, "The use *#*
fo r meetings where an admittance fe e i s charged fo r the purpose o f
r a is ­
ing money in any way s h a ll be prohibited u n less the money i s to be used
e x c lu siv e ly for school purposes."^
Dade County,
F lorid a1s only printed regu lation ,
p la ces th e r e s p o n s ib ility "for renting
the
p rop erties,
charging and c o lle c tin g the fe e s for the use o f same by non-school
in te r e s t s in
th e hands o f the Trustees*
Two of Georgia* 8 d i s t r ic t s prohibit ren tal by im plication*
Macon’ s by-law provides, "The school rooms and the sch o o ls s h a ll be
March
1
1* By-laws, Rules and Regulations - Colorado Springs
, 1927 Rule 12 p* 10
2* Rules for the Community Use o f School B uildings - Denver
May 3, 1933
3.
1933
Handbook o f the M i l l am Penn High Sohool
New Castle p .29
4* Rules o f Board o f Public Iducatfon in Wilmington Sec* 18,
p* S3
64
Board o f Public In stru ction » County of Dade
J
Huised e x c lu siv e ly fo r public school purposes*”
1
Columbus's by-laws for^i
b id s, "unless by sp e c ia l permission of the boards, the use o f the school
b u ild in g s for any purpose except that to -which they have been devoted#"^
Athens1 r u le s are s ile n t on th e subject*
The other two d is tr ic ts *
A tlanta and Augusta* provide r e sp e c tiv e ly ”for the ren tal as per schedule
on f i l e in the o f f ic e o f th e A ssista n t Superintendent o f B usiness”^ and
“upon payment o f such charges and under such con ditions as are required
by the board*"4 The d i s t r i c t s of Lewiston and Boise City* Idaho make
sim ilar p rovision s fo r ren ta l in the absence o f s p e c ific statu tory
a u th o rity .
Ihe p o lic y Is “to avoid com petition with commercial h a lls and
th ea tres”* “to meet popular demand fo r use during conventions caused by
n o n -a v a ila b ility of meeting p laces fo r large assemblages", and "to avoid
making a p r o fit from ren tal* but merely to make nominal charges for
heat* lig h t* ja n ito r service* p o lic e and f ir e protection* stage manager*.*
In ad dition to a minimum ren tal fee* gross r e c e ip ts over f iv e hundred
d o lla r s are taxed an a d d itio n a l fiv e per cent#
A tax of ten per cent o f
the gross gate r e c e ip ts i s required for the use of the a t h le t ic f ie ld
by non-school organisations*
Commercial advertising# in the form o f
p osters or signs on school property i s forbidden#^
I.
Buie 14
the sta tu te s o f
67th Annual Report o f Public Schools of Cliy o f Macon I960
p* 63
2* Buies and R egulations o f Columbus Public Schools 1923
l u le 101 p. 17
1934
3# By-Laws# Buies and B egulations o f -fee Board of Education
p* 54
4# Manual o f General Information - Public Schools of Augusta
and Richmond County 1930 p* 20
5* Rules and B egulations of the Board of Trustees -Independent
School D is tr ic t o f Boise City March 11# 1933 Chap. 11 Art* 1-4 pp*17l_
2Q
_ j
rX .llln olt s p e c ify r e n ta ls in -the d i s t r ic t o f Chicago only*
admies ion fe e B a r e charged)
(when no
"i
fh© s lle r o e of the d is t r ic t s of Elgin and
Rockford i s in con trast w ith th * very s p e c ific p rovision s fo r r e n ta l of
the sohool property hy the d i s t r i c t s o f Aurora, Bloomington, Freeport,
M oline, P eoria, &uimey# and Hock Island*
dependent
In Bloomington such r e n ta l i s
upon th e assen t o f th e Superintendent who, Mn case o f doubt
a s to the propriety o f such may, in h is d is c r e tio n , refer the same to the
Board
for dsotsiott*"1 Is Freeport th e oases of t o ib t "are referred to the
B uilding and Grounds committee with power t o a ct* ”
%
Ihe Moline "Build**
ing and- Grounds Oommitte©w regu lates th e use ***, e s ta b lish e s ru le s and
a schedule o f expense f e e s or r e n ta ls for the use *«* sub ject t o change
3
by the boardf"
In Feorla ffolh©r organisations (not those lis t e d )
or in d iv id u a ls may «** when such use i s approved by e ith e r Inspector o f
.4
the Ward*”
the board r u le s and regulations of only two sohool d i s t r i c t s of
Maine, Fort land and Westbrook, mention the sub ject of ren tals#
the former
d is tr ic t* a ru le s s e t a f l a t f e e of ten d o lla r s fo r use Then admission
i s fr e e and a f l a t f e e of f i f t y d o lla r s when an adm ission f e e i s charged#
A fe e fo r j a n it o r ia l s e r v ic e , fo r the se r v ic e s o f a ‘m otion p ictu re
operator ( I f used) and fo r the .services of a p o lic e o f fic e r ;
who must
be employed i f the p ro b a b ility o f a .'large attendance warrants i t ,
im
1* Rules and Regulations o f the Board o f Education Sept* 1 ,
Sec* S I , p.* SB
2#
Regulations Governing Use of Sohool Auditorium 1937-8
3*
By*laws o f the Board o f Education 1930
Chap* I I I Sec# S p* 3
4* R u les, Regulations and Charter o f Board of School
Inspectors Deo# 1930
pp* 13*4
1are a lso specified *^
The Westbrook regu lation s provide fo r a eommitte©1
o f sohool board members to pass on a l l ap p lica tio n s for ren ta l in
add ition to sp ecify in g r e n ta l charges*^
Printed by-laws o f the school
d i s t r i c t s o f Maryland are few in number# and s ile n t as the statu tes*
The d i s t r i c t o f Baltimore requires the payment of the expense o f having
a ja n ito r in attendance, w h ile th at o f Cedil County suggests# " It seems
reasonable to expect the payment o f a small fe e covering heat# ligh t#
and j a n ito r ia l service*"^
The situ a tio n in th e s ta te o f Massachusetts i s varied*
The
reg u la tio n s o f the d i s t r i c t s o f Lynn, Boston, Medford, Salem, and .
Concord are s i l e n t on th is su b ject, but those o f Dedham provide fo r a
ren ta l charge when an admission fe e i s exacted*
Cambridge and A rling­
ton have d eta ile d schedules of fe e s fo r the us© o f th eir various
f a c ilit ie s * ^
Fitchburg*a r u le s provide (amid a host of regulations*
the most important o f which are th at such us© i s prohibited i f the
organization* s purpose i s one o f commercial p r o fit and th a t n et p r o fits
s h a ll be used only for educational* s o c ia l, c iv ic , and philanthropic
purposes#) fo r r e n ta l and ja n ito r ia l fees#** The school board of
Holyoke " is authorized t o e s ta b lis h th© necessary charges for use o f
the school b u ild in g and to abate such charge when the purpose i s of
1.
B egulations fo r Banting High School Auditoriums - Portland
2*
Rental o f the Auditorium - Westbrook
3,
R egulations regarding use of school B uildings In C eoil County
1937
193$
4* Rules of th© Sohool Committee Cambridge 1933 S ec. 2913 p. SB
Rules of the School Committee and Regulations for the public Schools,
Town o f A rlington - Sec. 10
Buie© 1~?
1937
5 . Rules o f the Sohool Board o f the City o f Fitchburg June 29*
Chap. VI and XT
116
fsuch public in te r e s t and ch aritab le in ten t as to w arrant....
The
^
r u le s o f the Quincy School Committee provide a schedule o f ren ta l charges
fo r the use of i t s h a lls and gymnasiums under certa in con d ition s, and
a lso permit the "use o f i t s school h a lls for p rivate gain" a t ra tes
approximately one end one h a lf tim es th a t charged for other purposes*
The Everett regu lation s d is t in c t ly provide for use o f the school f a c i l i ­
t i e s but add "that the general use o f th e said h a lls sh a ll not be in
com petition ■with p r iv a te ly owned public h a lls ," and "that no school h a ll
s h a ll be rented under any circum stances or condition."
3
The by-laws o f the school d i s t r ic t s o f Grand Rapids and Port
Huron provide for the rental o f t h e ir f a c i l i t i e s d esp ite Michigan*a
sta tu to ry silen ce*
In the former d i s t r i c t , "The p rin cip a ls are requir­
ed to keep in th eir o f f ic e s a schedule o f r a te s , hours, p u rp oses,..*." ^
A uthorisation i s given in the la t t e r for rental a t sp e c ifie d times under
certa in co n d itio n s.
Section s ix a lso r eq u ires, "Whenever th e bu ildin g
•«« i s rented for any purpose, th e ren ters s h a ll furnish adequate and
s u ffic ie n t attendants and supervision including p o lic e attendance, i f
d esired , a t th e ren ter’ s expense****"^
on th e su b ject.
Bay Oity regu lation s are s ile n t
Those of D etroit are meagre, but require the payment
o f a " su ita b le ser v ice charge t o cover a l l expenses to the Board o f
1* Rules and Regulations of the School Committee Deo. 5 , 1927
Rule XII and XIII p. 33
2*
Rules o f the School Committee - Quincy 1930 Chap XV p* 23
3*
Rules and R egulations o f School Committee Everett Sept* 1935
4.
Rules and Regulations of Grand Rapids Schools 1934 Rule 42
p# 48
B* Rules and R egulations fo r Government o f Public Schools
Port Huron 1936 Sec* 1 - 11 pp. 14-20
j
HiSduoation,”'*'
the regu lation s o f Vicksburg and Meriden maintain th e silen oe
o f the M iss!ssip p i s ta tu te s but the Columbia d i s t r ic t , w h ile not specify*
in g ren ta l as such, does require payment for the use o f lig h ts* Jackson’s r u le s liir it the ren ta l "to use by c iv ic or educational en terp rises
a t the d isc r e tio n o f th e Superintendent,,♦*”
2
The Manchester school
d i s t r i c t o f lew Hampshire p la ces the r e s p o n s ib ility fo r the "renting
o f the High School auditorium in the hands of the Standing Committee
on Finance,"®
The Rochester school d i s t r i c t does not mention renting
4
the school premises but does "forbid th e ir use fo r commercial purposes” ,
but the Laconia d i s t r i c t i s s ile n t on the subject*
The statu tory s ile n c e i s maintained in the school board regula­
tio n s o f C harlotte, North C arolina,
Use in Winston .Salem i s lim ited to
regular school use except by sp ecia l permission*
On the contrary
nominal r e n ta ls, intended to take care o f ja n ito r ia l s e r v ic e , h eat,
l i g h t s , e t c . are charged, and b u ild in g s are rented in Salisbury and
Greenboro,
The la t t e r d i s t r ic t has a d e fin ite fe e fo r use o f the build­
ing fo r commercial purposes.
The use of th e auditorium and gymnasium
fo r the purpose o f putting on an automobile show i s charged a t one
hundred tw en ty-five d o lla r s per day.
The Sapulpa, Oklahoma regula-
« • * » * » « • * , m 4n»«* ••*»«■«
1# P o lic ie s on Community Use of School F a c il i t i e s - D etroit
F ile #6570
2*
Handbook fo r Teachers - Jackson Public Schools 1936 p, 10
1928
3 , Rules of the School Committee * C ity o f Manchester April
Chap# 121 Sec, 9 p, 9
1935
4# Rules aid R egulations - School Department - Rochester
Sec, 11 p, 38
1X8
i—
—1
tio n s provide for the r e n ta l of the school auditorium* w hile the Tulsa
r u le s hair® a d e ta ile d schedule of charges for the use o f classroom s,
auditorium s, gymnasiums, and under certa in cond ition s, the use of the
c a fe te r ia f a c i l i t i e s #
The schedule i s divided into two d is t in c t p arts,
one g et o f charges operating where an admission fe e i s charged and the
other where no such fe e s are exacted.*
Ho mention i s made in th e
Oklahoma City regu lation s o f such ren ta ls of school property.
Barrington, Central F a lls , Johnston, Hewport, Providence, and
Warwick school d is t r ic t by-laws maintain the Bhode Island statu tory
s ile n c e .
B r is t o l9s reg u la tion s, on the contrary, provide fo r "rental
o f i t s f a c i l i t i e s upon payment of su ita b le fe e s to cover cost o f heat,
lig h t and ja n ito r ia l serv ice, and fo r th e determination by ihe school
2
committee from time to time of a schedule o f charges or f e e s . ”
Excluding c e r ta in sch ool and sem i-school organ isation s, th e Pawtucket
regu lation s "require the payment by a l l other persons, corporations,
or a sso c ia tio n s of such fe e s as s h a ll be determined by the school board."’*
The Cranston reg u la tio n s provide "for the use o f auditoriums, unoccu­
pied classroom s, and basement room . . . from September to June in c lu s­
ive" under ce rta in d e fin ite reg u la tio n s, one o f vhich i s the payment
of uniform fe e s to cover the operation of said b u ild in g s,
which
*■**» *»«»
1.
Jan, 51, 1938
2•
A rt, 16
Buies and Regulations - The tJse o f School Buildings
By-Laws o f the School Committee - B r isto l Deo, 21, 1934
Sec* 3 p. 26
$* Rules and Regulations of School Board o f Pawtucket 1930
Chap* X Paragraph 6 p* 26
J
rfee
s h a ll be fix e d by r e so lu tio n of the school committee*^
Tennessee d i s t r i c t s represent a va riety o f in terp reta tio n of th is
sta tu to ry s ile n c e , from a continued sile n c e on the subject in the d is ­
t r i c t s of B r is to l, Chattanooga, jack son, Memphis, t o an absolute pro­
h ib itio n in U a sh v illei "He She Superintendent] s h a ll see th a t no school*
house or other school property sh a ll be used fo r other than school
purposes*’1
The Johnson City reg u la tio n s provide, "The fee for the
use o f school b u ild in gs fo r each meeting ••* sh a ll be a s per schedule
o f charges [ f i f t y per cent higher in winter than in summerf on chart
on f i l e in the o f f ic e o f the Superintendent*«**"
i a l servic© i s included.
A fee for ja n ito r­
The Superintendent advisess "The ren tal o f
our b u ild in g s for non-school purposes i s not e n tir e ly sa tis fa c to r y to
the Board, but since the b u ild in g s were in d iscrim in ately used for many
years, u n til three years ago by anybody and everybody, we f e e l th at we
have made some headway."
K noxville*s regu lation s m aintain, "Under the
d ir ec tio n of the Superintendent, th e Business Manager sh a ll have charge
A
o f the ren ta l o f school gymnasiums and auditoriums."
A chapter in the
But land r u le s and reg u la tio n s i s the only break in Vermont* a silen ce*
I t in clu d es fe e s for the various gymnasiums and auditorium s, d iff e r ­
e n tia te s charges mad© for afternoon ,use from those for evening use*
and d en ies the use o f the f i e l d to a l l groups on school days and be-
1# By-Laws of the School Committee of Cranston 1938
Sec* 3 p* 18
Art* IX
3* Buies for the Organization and government o f the Public
Schools Hov* 26, 1928 Chap* V Paragraph 20 p* IT
3* Buies and B egulations Concerning Johnson City School B uildings
and Grounds
4.
L_
By-Laws (Bevised) K noxville fe b . 8, IS37 Sec.ID p* 14
-1
—
i tween June f i r s t and October f ir s t *
1
-1
~"i
the reply of the secretary o f the Aberdeen Washington aohool
d i s t r i c t , when requested for a copy of the board regulations* contains
a clu e to th e-situ a tio n *
”#** we do not have any compiled school board
regu lation s fo r our d is t r ic t *
We are having some d if f ic u lt y ou rselves
about the use o f school property by various ou tsid e groups*
Our board
i s not in favor of too much outside use as i t adds considerable expense
to maintenance and operating c o sts* ”
Ho mention I s made in the E verett
or S e a ttle regu lation s o f t h is su b ject, but th e Olympia and Spokane
2
r u le s provide for r e n ta ls a t stated fe e s under certa in conditions#
The Tacoma regu lation s are so clear* p recise, w ell defined and compre­
hensive th a t controversy would seem to be impossible*
While ren ta l o f
school p rop erties i s provided fo r in th ese r u le s , "The School Board
Lin order to f u l f i l l
ed h a lls j
i t s p o lic y o f non-com petition with
p riv a te ly own­
reserves th e rig h t to d eclin e to approve any a p p lica tio n
for use o f a school auditorium when i t b e lie v e s a p riv a tely owned h a ll
should be p atron ised .”
o f the school properties*
The fe e s are calcu lated to discourage ren ta l
In con trast to Laramie1s (Wyoming) sile n c e
are the Cheyenne regulations* perm itting ren tal of i t s school proper­
tie s *
The lim ited number of co p ies of school board reg u la tio n s, obtain­
able from the s ta te s o f Arizona* Nebraska, Nevada* Louisiana* and
South Carolina, were a l l s i l e n t on the subject of the ren tal of school
1* Rules and Regulations of t ie Board o f School Commissioners
June 1937 Chap* VII p* 14
2* Rules and R egulations - Olympia Public Schools Sec* 141
Rules and R egulations - Spokane, Washington Public Schools 1935 Sec•30
p* 9
3* R egulations Governing Hse o f School B uildings Sec, 1
June 17* 1938
1Z1
rproperty.
~1
I t i s , th erefo re, obvious that in only f iv e s ta t e s of the twenty*
f iv e whose sta tu tes are s ile n t on the subject o f the rental of school
property, i s th ere a lik e sile n c e in the resp ectiv e school board*s ru les
and regu lation s on t h is su b ject.
I t i s a ls o m anifest th at w ith in each
s ta te there i s a wide v a r ie ty o f opinion in th e in ter p r eta tio n o f such
s ile n c e on t h is matter, th a t approximately h a lf o f the d is t r ic t s in
each s ta te make reg u la tio n s concerning ren tals d esp ite statu tory s ile n c e ,
Statu tory Im plication
In ad d ition to the twenty • f iv e s ta t e s
p reviou sly mentioned, there i s another group of f iv e s t a t e s , the
s ta tu te s o f which, i t seems to th e w riter, may be interpreted eith e r
to permit or t o prohibit commercial use of th e ir school properties*
For example, the Connecticut sta tu te re extended use of th e school
f a c i l i t i e s in clu d es, "the school d is t r ic t or to m may, by a tw o-thirds
vote o f those present a t any le g a l m eeting, allow i t s schoolhouse or
schoolhouses when not in use*** t o be used fo r any other purpose*11^
In a se c tio n of the Hew Mexico sta tu te s devoted to a ban on sectarian
use o f the schools, th ere i s a olausot
"Provided, that t h is sectio n
sh a ll not be construed to in te r fe r e with the use o f th e school b u ild ­
in gs fo r other purposes authorised by the county board a fte r school
hours,'"
Z
In th a t se c tio n o f the Pennsylvania s ta t u te s , devoted t o
authorising boards o f school d irecto rs to permit use fo r sev era l
1#
Supplement t o laws R elating to Education dan# 1, 193d
2*
Hew Mexico School Code
p* 6
1931 Sec* 170
pp, 76-7
J
122
^ sp ecified reasons, may be found” •
and other proper purposes, under ^
such ru le s and r eg u la tio n s a s the hoard may adopt . .
the Kansas
and Kentucky enactments on t h i s su b ject are almost id e n tic a l,
th ey
authorise© the use of b u ild in g s fo r cer ta in sp e c ifie d purposes "under
such rules and reg u la tio n s as the board may deem proper” (Kentucky),
"under such regu lation s a s th e board may adopt but i t s h a ll be unlawful
for any school board to a c t a r b itr a r ily or p a r tia lly in the matter o f
g
prescriblng r e g u la tio n s .. . •
J u d icia l In terp reta tion
A case, concerning the lea sin g fo r o i l
and gas development of a part o f school property, (conveyed for common
school purposes) m s heard in cou rt.
2he p l a in t i f f contended th at con­
version from educational purposes to commercial purposes con stitu ted an
abandonmenti
but in t h is contention he m s not sustained sin ce the
court ru led , th a t i t m s an e ffo r t to g et from i t s property rea l values
fo r a more e f f ic ie n t adm inistration of school a f f a ir s .
"In the f i r s t
place," argued the court, "the mere lea sin g of i t s property to others
fo r development purposes i s not engaging in a commercial venture." 3
A Kentucky c a se , concerning the sa le of a portion o f a tr a c t of land
conveyed to be used for school purposes, on which no school had been .
b u ilt for a period of seven years, was decided upon the b a sis o f the
conspiracy involved, rather than upon the commercial aspect o f the
mm mm m
m mmm mmmm m
1«
pp. 67*8
The School Laws of Pennsylvania 193b A rt, VI Sec* 62?
2.
Kentucky Common School Laws June 1934 Chap. VI Sec, 4399-63
pp. 99-100 School Laws o f Kansas revised 1935 Sec, 400 (72-1053) pp .114-5
3 * ggg
i
3gg
H Iliam s e t a l
v MoKenaie
Feb. 19, 1924
J
123
’a lleg ed sale*^Board Rules
The number of adjudicated d isp u tes in the f iv e sta te s
mentioned i s too few to predicate any separate and d is t in c t conclusions,
but a study o f th eir school d is t r ic t regu lation s w ill a s s i s t in climax**
Ing a point*
A ll but two (Hartford and Norwalk) o f the school d is t r ic t s
in Connecticut have interpreted the "for any other purpose11 as power to
rent th e ir properties*
The Waterbury regu lation s require an ad d ition al
payment o f " fiv e d o lla r s to the school p rin cip al or a teacher designated
by her for supervision," in those cases where an admission fe e i s
2
charged*
3he W lllim antic ru les provide fo r the payment of a minimum
f e e , plus a charge for ja n ito r service and payment for any p o lic e pro­
te c tio n th at may be necessary, but r e s tr ic ts such u ses to en terp rises
3
which are not for personal p rofit*
In addition to providing a sched­
u le o f charges fo r the use o f the b uild ing the Stamford regu lation s a lso
req u ire, " S u fficien t p o lic e service sh a ll be provided as determined
by the Superintendent of Schools, expense for such serv ice sh a ll be paid
4
by the person or organisation granted the permit**.*"
In New B ritain
reg u la tio n s, th e schedule i s a graduated one} ren tal may be had for
commercial use a t a fe e almost tw ice that for other uses and "police
p rotection in accordance with th e c it y ordinances must be provided by
1*
193?
!_
_
Calvert
v Town o f Pewee V alley
Feb* 1, 1924
2* Rules and R egulations o f the Board of Education - Waterbury
Chap* XIII pp. 62-3
3*
1931
26 S.W* 6
Regulations for Nae o f Auditoriums - W illim antic 193?
4* Rules and R egulations o f the Board o f Education - Stamford
Chap. XII Sec* 13 p. 33
J
124
i
,rth© organization
and i s n o t included in tin© ren tal f e e . ”
|
The
principal© in Meriden arc permitted to use th e ir d isc r e tio n in renting
the property** requiring police* fir© and ja n ito r se r v ic e , the posting
o f a bond and a complete accounting of a l l money c o lle c te d , as they
deem necessary.^
fhe 'Danbury reg u la tio n s, true to type, require a
ren ta l f e e , p o lic e p ro tection , operating expenses for f u e l, lig h t , and
power, and ja n ito r serv ice dependent upon the c o lle c tio n of admission
fe e s}
but in add ition require “l i a b i l i t y insurance fe e ” when admission
i s charged, reg ard less o f the d isp o sitio n of the proceeds*
Bridge­
port * s d e ta ile d and c o n s is te n tly Connecticut ru les require p o lice pro­
te c tio n and supervision by a personal rep resen tative o f th e board in
the person of custodian*
The use o f i t s p rop erties for any purpose
which in volves personal or p rivate p r o fit i s not permitted*
On th e other hand, no d i s t r i c t in Kansas makes provision for
r e n ta ls , with th e exception of P ittsb u rg , where regu lation s provide
fo r ren ta l o f auditoriums, gymnasiums, and c a fe te r ia s , but include a
p roh ib ition a g a in st “lea sin g fo r p rivate gain*”
i s broken by two d i s t r i c t s , Lexington and Paducah*
Kentucky*s sile n c e
These two s e ts o f
reg u la tio n s are p r a c tic a lly id e n tic a l in wording except that the
1* R egulations Governing the Bee o f School B uildings fo r other
than Regular School Purposes Deo* 8 , 1937
19m
2* Rules and R egulations of Board o f Education - Meriden
Art* I f Sec* 56 p* U
2 *
Regulations Governing Community Os© o f High School
Auditoriums Danbury 1957
4*
p*
Rules of the Board o f Education
Bridgeport 1920 Chap* XII
51
5* Rules and R egulations o f Board of Education - P ittsburg *
November IS36 Chap* X pp. 9-10
L.
J
^former p laces t h is matter under th e ju r is d ic tio n of the Business
or, and th e la tter# th e Superintendent o f Schools*
D ir e c t^
Both ban any use
th a t can be considered as personal# p rivate, secret# e x c lu siv e or for
commercial gain*
both require ’’the payment of ren ta l and ja n ito r ia l
f e e s by organisations .#* when the public i s in v ited and no admission
fe e s c h a r g e d # T h e only d i s t r i c t in New Mexico regulating th e ren tal
o f school property i s t h a t o f Gallup# where the charge i s a small one
to cover co st o f heat# ligh t# water# e t c .
the f e e s are, however# eon*.
tin g en t upon s is e o f crowd# n igh t o f rental# furnishing o f heat and
charging o f admission fees* 2
’ The school d i s t r i c t s in th e sta te o f Pennsylvania have unani­
mously Interpreted the sta tu tory s ile n c e on the subject o f r e n ta ls as
an implied permission*
The Beaver F alla reg u la tio n s provide a schedule
of ren ta l fees# which include the service o f head ushers, stage manager,
and custodian*
Hew C astle ru les provide for ren ta l o f the school audi­
torium fo r s p e c ific purposes, upon the approval o f the superintendent*
The Shenandoah d is t r ic t makes p o ssib le the r e n ta l of school f a c i l i t i e s
a t a fix e d fe e when admission i s charged;
a graduated sca le o f r e n ta l charges*
the Lansdale d is t r i c t has
Maximum f e e s are charged ’’when
entertainm ents are given by producing companies which share in the
r e c e ip ts* .* ”,
’’when the organisation u ses the auditorium fo r any pur<m—
— O B '*
•X* Rules Governing Board of Education - Lexington 1933
A rt. VIII Se©* 1-2
Rules and R egulations Adopted by Board of Education Paducah 1934 Rule 16 p* 1?
Rule 23 p* 18
2*
R ules and R egulations o f Board of Education ~ Gallup
rposQ o f advertising# A e th e r through speech, demonstration, moving
p icture or otherwise**#V
i
^
Philadelphia reg u la tio n s provide for ren ta ls
o f school premises for c e rta in purposes# even -when admission i s charged#
but reserve the rig h t to require supervision by the p r in c ip a l, disburse­
ments of the funds fo r school purposes# and an accounting c f funds
c o lle c te d .^
burg,
5
th e school d i s t r ic t s o f Bethlehem*^
and leading#
6
Lancaster,^
Harris*
have each a very d e ta ile d , complete and ex­
h austive s e t o f reg u la tio n s on t h is s u b je c t, including a graduated
sc a le o f charges# and a ban on use for private or corporate gain*
Harrisburg a u th orises the Board o f School D irectors to charge ren tal
f e e s a s they deem necessary in the in te r e s t o f the d is tr ic t*
and to
prohibit the r e n ta l, but not the u se, of school gymnasiums fo r any
purpose *
Hence i t may be concluded t h a t , of the f iv e states# whose
s ta tu te s contain no s p e c if ic au th orisation for renting the school
property, but do contain a phrase or clause which might be so in te r ­
preted under a broad construction* th e d is t r ic t s o f three o f them*
Kansas, Kentucky, and Hew Mexico are somewhat loath to include any
1 . Use o f School Auditorium * Lansdale School D is tr ic t
Sept. 1, 1933
2.
Rule XI
A rt.
8
By-laws and Buies o f the Board of Public Education 1936
p. 57
3 . Rules and R egulations o f School D is tr ic t - Bethlehem
pp. 37*40
4.
Lancaster
Rules and R egulations of Board of School D irectors
Sept. 27, 1927 A rt. XXI Sec. 1-7 p. 27
5 . Rules and R egulations o f Board of School D irectors Harrisburg Rule 61 pp. 180-5
Seotion'ldBS ^ 0 8 **** Begulatione o f School D is tr ic t C ity of Beading
J
m
’""regulations fo r t h is purpose*
The d is t r ic t s of one* Connecticut* are. ^
divided on the subject* some author!sing such r e n ta ls and some remain­
ing s il e n t concerning i t .
A ll d i s t r i c t s o f the fifth * Pennsylvania,
have provided regu lation s fo r such use., some in greater d e t a il or with
l e s s r e s tr ic t io n than oth ers *
S p e c ific Statutory A uthority
The l a s t group of s ta te s in t h is
a rb itrary c la s s if ic a t io n , in add ition t o authorising use o f i t s resp ective
school f a c i li t i e s * au thorizes a charge for t h i s use*
s p e c ific grant i s ,
so ” 5
1
in Iowa,
11
In Arkansas the
*. .may make a charge i f they deem proper to do
” • . . fo r such compensation . . . and upon such con­
d itio n s as th e board o f d i r e c t o r s . . . I n Minnesota, wThey may charge
and c o lle c t ».« from the persons using «** such reasonable compensation
as they may f i x . .
The Missouri school boards ”are permitted to
determine -whether to charge fo r ex p en ses.♦ .”} but may be prohibited by
a m ajority of the voters o f th e d istr ic t* ^
Montana boards are empower­
ed ”to re n t, lea se and l e t to such person® . . . a® the board may deem
5
proper . . . fo r such tim e and ren ta l a s the Board may d e s ig n a te ..* ”
**.♦* and fo r such entertainm ents and occasions where admission fe e s
1.
The School law o f Arkansas I9SIS ec. 174
2.
School taw o f Iowa 1938
Chap* 226 Sec* 4371 p. 283
4 . State o f Missouri - Revised School Laws
Sec. 9200
p* 10
0#
2
82
3* taws o f Minnesota R elating to th e Public School .^rstem
Sec * 74 Paragraph 3 p. 26
1931
p*
p.
School taws o f Montana
1931
sec* 1016
1933 Art* I I
Paragraph
7
'7
J
128
Tare charged as m y he approved by the Board of Education*" i s Hew
Jersey Vs ru le. ^
“l
In Mew York nothing prevents "the tr u ste e s . . . from
adopting r u les end reg u la tion s t o make the community cen ters or c iv ic
*2
fortans s e l f supporting a s fa r a s p r a c tic a b le .0
"The Board of Education
C In Ohio"] upon request and the payment o f Janitor f e e s , subject to the
r u le s • .• s h a ll permit use • . . #M^
In Horth Dakota, Indiana, and Oregon,
“School Boards . . . may permit use when not occupied • • • for any proper
purpose with . . . provided a t no co st to the d istr ic t# * 1^ A. m ajority o f
Oregon v o ters can deny the use contemplated#
In Indiana i t i s , h o o v e r ,
e s s e n t ia l th a t a m ajority of the le g a l voters of the d is t r ic t d esire
such use before i t can be permitted#
south Dakota*a sta tu te provides
"•## compensation a s s h a ll be fix ed by the Board • •« for the use of
a th le tio parks or grounds.0
"##* Schoolhouse may be used . . . provid­
ed th at such use s h a ll be e n tir e ly without expense . . for h eat, lig h t ,
and the care o f game to the d is tr ic t." ^
in Texas*
The ren tal idea i s implied
s e lf-liq u id a tin g gymnasiums, supported by charges other
than ta x a tio n , sta d ia or other recreation al f a c i l i t i e s may be constru cted ."
The School Board o f Scott County, V irgin ia i s authorised
1.
Hew Jersey School Law 1037 Chap# V# Sec# 18*6*22
p. 13
2#
Education Law 1934 Art. X sec* 276
3.
Ohio School Laws 1934 Chap. XVI Sec# 7622 Paragraph
Paragraph 4 p. 93
3 p. 366
4. deneral School Laws * Horth Dakota 1935 Chap# XXXIV Sec# 657
p. 216
School Laws Of Indiana 1935 Chap# VIII Sec. 263 p. 100
Oregon School Laws 1931 Chap. XI Sec# 35 «• 1123 p. 63
5. Public School Laws of South Dakota 1937 Chap# 109 Sec# 192
Paragraph 1 and 2 p. 64 * Art. I Sec# 88 A 89 p. 29
6# public School Laws o f Texas 1935 Chap* XIV Sec. 364
pp. 159 * 60
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re-to r e n t, le a se , or otherw ise permit to be occupied and used, the
grounds and b u ild in gs o f "tie high school in such county for the purpose
1
of . . . .
Utah's mandate i s , . . . to make such charges for th e use o f
the same as they may decide to be ju s t
provided th at the d is t r ic t
sh a ll be a t no expense for fu e l or serv ice o f any kind for any such
use....”
2
West V ir g in ia 's enactment r e s u lts in a v ir tu a l ban again st
ren tin g , ”. . . Boards o f Education sh a ll have au th ority to provide for
,
3
fr e e , comfortable and convenient use of any school p rop erty.n
"Except
in c i t i e s o f the f i r s t c la s s the school board f o f W isconsin"] . . . , a fte r
being f i r s t so authorized by the e le c to r s . . . i s empowered to grant
the use . . . for public meetings to which an admission fee i s demanded
and to charge for such grant or use such sums as may b© fixed by tbs
4
school board . . . . ”
In C alifornia they are empowered
and in
th e ir d isc re tio n ren t the school property . . . . "
In t h is resp ect they
5
are, however, bound by th e in stru ctio n o f the d is t r ic t meeting.
J u d icia l Authority
Several court cases have a risen in th ese
S ta te s, where the sta tu te s are so much more s p e c if ic ,
con troversies arose in th e s ta te o f Arkansas.
Chap. 361
fwo o f these
Some taxpayers eontend-
1.
V irgin ia School Laws 1936
Sec. 1 p. 174
2.
School Laws o f the S tate o f Utah 1933 Sec. 75 - 2 2 - 5
3.
the School laws o f West V irgin ia 1935 Art. V See. 19
p. 46
p. 34-5
4. Laws o f Wisconsin R elating to Common Schools 1956 Chap. 40
Sec. 40.38 p. 501
8.
Chap. I
School Code - State o f C aliforn ia 1937 Blv. VI Pt* I
p .326-7
ISO
r
ed, previous to the enactment o f the present a c t, th at the school
n
d i s t r i c t was le a sin g the second flo o r of a school bu ild ing to a lodge,
and a lte r in g a b u ild in g to s u it i t s u se.
The court approved t h is le a s e ,
and h eld , ”We do not b e lie v e i t was th e purpose o f the L egislatu re in
granting express authority for private schools to be taught in the public
school b u ild in gs to exclude other usee where such use does not in ter fere
1
w ith the schools nor injure the b u ild in g s .”
In the more recent case
the controversy arose over the board’s le t t in g the bu ilding and equip­
ment to a teacher to maintain a tu itio n school fo r two months; because
i t was forced to discontinue the maintenance o f the free school when
i t s funds became exhausted.
Quoting Section 174 o f 1931 s ta tu te s , the
court indicated the au th orisation for use for a community purpose, and
ruled, ”f h is is a community purpose, which, i f i t had not been so
authorized would have meant no school for some pu p ils on account of the
d ep ressio n ."
The cou rts o f Montana were ca lled upon to s e t t l e a dispute in
which a taxpayer, owner o f the "Townsend” Auditorium, complained that
the oounty
high school, in perm itting the use of i t s gymnasium for
dances not connected with school a c t i v it i e s , was in com petition with her.
Meanwhile, the sta tu te had been amended elim in atin g a l l r e s tr ic tio n s }
but the court held th a t the sta tu te before amendment con trolled her©
and hence th a t the authority was r e s tr ic te d to ren ting for ”p u b liof!
1.
113 Ark. 19
Cost
V Shinault April 27, 1914
2.
190 Ark. 563 xqIO Burrows v Pocahontas School
79 S.W. (3d)
D is tr ic t #19 March 11,1935
L
J
is i
•"enter talnments *”
nfhe sta tu te under con sid eration ”, reasoned the
c o u r t /’but provides a means by -which high school tr u ste e s may r e lie v e
to some exten t th e burden of taxation fo r school property r e stin g upon
th e people of the- s ta te *■*%* Sie business or commercial aspect of the
power granted the board here presented might w ell be urged before a
le g is la t iv e assembly having such an a c t under consideration but cannot
be considered by the court In order to d efea t th e w i l l o f the l e g i s 8
latu re*”
Previous to the adoption o f the present Hew York s ta tu te . Super­
intendent Grape? granted a perpetual injunction a g a in st the use o f a
schoolhouse in ’C la r k s v ille , by a temperance s o c ie ty , fo r one evening
a week}
although said s o c ie ty had paid a rental fe e so th at i t might
have ex clu siv e use*
Superintendent Crooker quoted t h is d ecisio n
eig h t years la t e r , in ordering discontinued a sim ila r use by an exclu g4
iv e organ isation , which a lso paid rent fo r t h is purpose*
The most
recent appeal heard by the Commissioner* conoemed the renting of an
unused school bu ild in g fo r public dances*
Great care was taken to d is­
tin g u ish between the proceeds of a ren tal which were used for mainte­
nance purposes end the proceeds derived from operating the dances, which
became th e property o f the individual renter and were presumably used
Chapter
8*
7
90 ion||^576^^
p* 307
Young v Board o f Trustees o f Broadwater
Hov* 4 , 1931
3* d u d io ia lb e o is io n s p* 890 - 1 0* Le Fever v R* Milg&te *
duly 81,
- 4# Ibid** p# 894 - 9 B, Johnson V \%n* D» Winston #4334
March ?# 1898
L
•J
fo r him self*
The tr u ste e s were ordered to discontinue such ren ta l with""1
the warning that they had stepped beyond the p rev isio n s o f th e law.*
An ea rly d ecisio n o f the Ohio s ta te court ordered discontinued
the lea sin g o f th e schoolhouse for the purpose o f teaching th erein a
p rivate school*
The court maintained th a t th e casual and temporary
use of school p rop erties m s le g a l but not a le a se thereof* *’that the
board*s power to dispose o f property was intended to and does r e la te
s o le ly to the property not needed fo r th e use o f public schools*”
A taxpayer* s action sought to en join a Horth Dakota school
board from ren ting for a consideration an auditorium in the high school
b u ild in g for use for th e a tr ic a l entertainm ents by vau d eville troupes*
The p la in t if f was manager of tbs "Auditorium Theatre Company*” which
en terp rise had suffered a s a r e s u lt o f t h is com petition*
The d is t r i c t
had benefitted* because th e ren tal had exceeded a l l expenses and l e f t
a su b sta n tia l net p ro fit*
At the time the case was before the die*
t r i o t court* the laws did not grant s p e c ific power to the o f f ic e r s o f
t h is type d is t r ic t to rent for any purpose* although i t did permit
such ren tal to o f fic e r s o f common school d is t r ic t s *
The b e lie f that
the power already e x iste d was in d ica ted , but the sta tu te was enacted
to remove a l l doubt*
Upon appeal the court ruled that the permanent
in ju n ction granted by the d i s t r ic t court contravened the new statute*
exp lain in g, "An injunction w ill be d isso lv ed where, subsequent to I ts
issuance* a sta tu te which le g a lis e s the a c ts restra in ed I s enacted*”^
1*
V ol. 31
Department Reports o f sta te o f Hew York * O ff ic ia l Edition
p* 447#*80 duly 10, 1924
2*
35 Ohio 143
3*
61 H.B* 212
237 H*W* 700
Weir
v
Day e t a l
December 1978
S3‘s®ion8 v Board of Education,Crosby duly 15*
133
r
the Texas court of C iv il Appeals was asked to d isso lv e the
~
temporary in ju n ction , granted by the d i s t r i c t court a gain st the tr u ste e s,
restra in in g them from renting a part of th e campus to the Booster Club
fo r playing b asket-ball*
Relying on th at sta tu te which centered control
in the school boards,the court held , "In other words w© think the con­
tr a c t is not u ltra v ir e s , although not a c tu a lly necessary for the pro­
motion o f the sch ools but w i ll r esu lt in quite a fin a n cia l advantage to
the school d i s t r i c t • * . «tt
1
Recent opinions o f the Utah Attorney General
in d ica te that the present use of school property in t h is sta te is a
very extended one*
"School dances, plays and games to which an ad-
m ission i s charged should pay, the s a le s tax" is one o f h is rulings*
2
Ke
has a lso h eld , ^Boards are required to pay a lic e n s e on e n terta in ­
Wien o n ly a nominal charge i s mad© to defray
3
expenses, no lic e n s e i s required*"
ments conducted for p ro fit*
I t becomes ev id en t, that where the sta tu tes are s p e c if ic , the
number o f expensive t r i a l s , over p etty controversies* r esu ltin g in i l l
w ill,
i s reduced consider&blyi th at th e courts are extrem ely broad in
th e ir
construction of the s ta tu te s , and that the s ta tu te requiring in te r ­
p retation o f the sch ool law by the c h ie f sta te school o f fic e r i s one o f
the most potent fa cto rs in dim inishing the number o f occasions on which
th ese c o s tly ju d ic ia l proceedings have been made necessary*
1* 139 S *W* 1010 Royce Independent School D is tr ic t v Reinhardt
July 2, 1913
i_
2*
Opinions of 1h© Attorney General Oct* 13, 1933
3*
Opinions o f th e Attorney General Feb* 26, 1925
J
m
r
School Board Regulations
The follow ing se c tio n w ill in d ica te to1
what exten t school d is t r ic t s take advantage of the authority delegated
to them by e x p lic it statute*
Three d is t r ic t s o f Arkansas have ru les
for carrying in to execution t h is delegated authority*
Hot Springs ru les
provide, "They sh a ll have supervision over a l l the real e s ta te o f the
«1
d i s t r i c t which may or should be rented.
The B ly th e v ille r u le s, in
add ition to a f l a t n ig h tly ren ta l, a lso require "a fee o f th ir ty -th r e e
and one-third per cent of th e gross receip ts in eases where admissions
2
3
are charged."
Fort Smith provides a schedule of charges.
Alameda’s (C a lifo rn ia ) reg u la tio n s, provide for the use for other
than school purposes in accordance with the School Code o f C aliforn ia,
and require the board to f i x a l l fe e s and prescribe a l l rules i t may
4
deem necessary*
Ho in ter p reta tio n i s given in the school d is t r ic t s
o f Pasadena and Santa Barbara*
A simple statement of f a c t accompanied
by a schedule i s the In terp retation in the d is t r ic t s o f Sacramento and
6
Long Beaoh.
The r u les o f San Diego require, "The charges for ren ta l
sh a ll be f ile d by th e Business Manager in accordance w ith an o f f i c i a l Q
ly adopted schedule unless otherwise ordered by the Board."
Fresno’ s
1.
P o lic ie s o f the Hot Springs C ity Schools May 1938 Art*III
2m
Use o f School B uildings and Grounds - B ly th e v ille 1930
Sec * 2
3. Rules o f Public Schools o f Fort Smith Jan* 19, 1917 Art*
m i l Sec* 1-3 p. 40
4*
Rules o f Board o f Education - Alameda Bov* 6, 1936 Sec* 42
6* The Adm inistrative Code of Long Beach City Schools 1929
Sec* 17 p. 18
Rules and Regulations o f th e Board o f Education - Sacramento Sept* 30,
1936 Chap. 16 Sec* 6 p. 2$
6* The A dm inistrative Code o f th e San Diego City School D is­
t r i c t Oct* 19, 1936 Art* 9 Sec* 29
L-
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136
•"'regulations Ind icate that charges for the use o f th e auditorium vary “]
from- no charge up. to a commercial ren ta l, depending upon the c l a s s i ­
f ic a t io n . « Such c la s s e s o f use and ren tal are fix e d from time to tim e
by the Board o f Education. * bos Angeles and'Oakland include among
other d eta ils, ru les regarding who may r e n t, and a ban on pay en ter­
tainm ents, w ith a few p o ssib le exceptions*
a lso include .a schedule o f regular charges*
The Oakland regu lation s
"Fees in accordance with ■
the e f fe c t iv e schedule th ereo f adopted by the Board • •• i s the Los
Angeles requi rosiest."
2
The " d iscretion in determining whether i t be free use":, -granted
in the Indiana sta tu tes has resu lted in an almost equal d iv isio n of
opinion*
Four school d i s t r i c t s , E v a n sv ille, Mumcie, Terre Haute,
and La Porte are s ile n t on the su b ject.
The regu lation s o f Bloomington,
Elkhart and South Bend p rescribe a fix ed fe e fo r a l l u se s.
The sched­
u le in Huntington i s a graduated one, the fe e s being based upon the
time o f u sin g, (afternoon vs* evening) the p a rticu la r property used,
(room, auditorium gymnasium, b u ild in g) and the kind o f use to which
i t Is to be put. "Commercial and p ro fessio n a l indoor games when clean
3
sportsmanship p rev a ils" , are- included in the uses*
The- Board o f
School Commissioners in Indianapolis i s authorised to adopt a schedule
1.
1, 1936
Buies and Regulations o f Board o f Education. - Fresno Aug.
Chap* XVII Sec. 1-3 p. 16
2 . Rules and R egulations o f Board of Education - Oakland
August 1930 0iv# XI Sec* 166-20?
R egulations - Los Angeles City Board o f Education - dune 193? --Chap* IV
Sec* 21*803 - 21.S76
3* R egulations Governing Use o f School Property - Huntington
Sep t. 9 , 1931
J
m
fbf ra tes for such r e n ta ls as i t sees f i t to permit a fter approval by
-]
the school p rin cip a l, but "use for commercial «*• gatherings sh a ll not
be permitted,"^
Iowa1s d i s t r i c t s present a v a riety o f in te r p r e ta tiv e regu lation s
designed to f a c i l i t a t e th e execution o f t h is s ta tu te .
School board
s ile n c e is the ru le in the d i s t r i c t s o f Davenport* Dubuque* Waterloo
and Sioux City*
Cedar Rapids e sta b lish e s a r en ta l and "rehearsal fee for
use by organ isation s th at are n eith er school nor sem i-sehool."
Muscatine
provides fo r us© at "the co st of a c tiv e expenses to ch aritable in s t it u ­
tions* and a t a nominal fee over the co st for a l l other purpose."
Des Moines-the school board takes actio n as each case a rises*
In
In the
d i s t r i c t o f Council B lu ffs no us© i s permitted for "commercial en ter3
prises* public or commercial d a n o o s * . f h e exact fee for permitted
uses i s prescribed in the Council B lu ffs regulations* but only suggested
in Keokuk where th e Board o f D irectors i s permitted "to make such
charges as w i l l compensate the school d i s t r i c t ,. .* basing the amount of
the charge upon the purpose**., the ex ten t of th e use* the cost of
s e r v ic in g .* ., the exten t o f p u blic in te r e st .** and the community
4
advantage* i f any* a risin g from such uses,"
Somewhat rep resen tative of th e smaller p la ces In Minnesota i s
the follow in g data received^
"Benson i s a ty p ic a l sm all Minnesota town*
I* Rules of the Board o f School Commissioners o f Indianapolis
Sept* 8* 1931 Art* 19 Seovl - 6 p* 20
2*
3
.
Handbook - Public Schools o f Cedar Rapids 1936
p, 8
D irectory of Council B lu ffs Public Schools of Iowa
p* 37
4* Rules and Regulations o f th e Independent School D is tr ic t o f
the C ity o f Keokuk Nov* 14* 1927 Rule 68-77 pp. 17-9
’d e f in it e ly rural-minded.
T his means th a t each new m ajority on a
school board wants to do as i t sees f i t , hence s t r i c t regu lation s would
be im possible i f t ie current m ajority did not d esir e them.
We have no
b y -la w s* ,,, A charge o f f if t e e n d o lla rs i s made for a l l non-school uses
of
th e
auditorium, but t h is sum i s u su a lly
r e m itte d
back to
th e
payor
There is a lso an absence o f printed by-laws in Brainerd, S t,
«
Cloud, and T ir g in ia , In the c it y o f Duluth, i t i s the duty o f the
Committee on S ch o o ls* ., to make such charges for t h is use a s may be
in accordance with the schedule o f charges approved by the Board of
2
Education.*.*"
"School b u ild in g s and grounds may be used fo r commun­
i t y purposes
in M inneapolis
under sp e c ia l ru les o f the Board of
Education,"
The s p e c ia l ru les provide s p e c ific r e n ta ls , fo r sp e c ifie d
4
f a c i l i t i e s , at and for sp e c ifie d times under very d e ta ile d co n d itio n s.
The Rochester regu lation s are q u ite d e ta ile d and provide, among other
item s, d e fin ite fe e s for ren ta l of c h a ir s, ta b le s , d ish e s, the gymnast­
urn fo r banquet purposes, for garbage removal, e t c .
s'
Many d i s t r i c t s in the sta te o f M issouri regulate the r e n ta ls
authorised by statu te*
Mexico and Joplin provide for a ren ta l fee
s u f f ic ie n t to cover the c o st of actu al expenses such a s h eat, lig h t ,
w ater, c u sto d ia l serv ice, e t c .
1,
In Mexico the fe e i s two and one h a lf
Letter from Superintendent W*K* De La Hunt March 5, 1938
1936
2. Rules and R egulations o f Board of Education Duluth, July 28,
Rule 14 p. 22
1933
3* M inneapolis Public School - Charter Rules and Regulations
Sec* C. 29 p* 61
4*
Rules Governing Community Dae o f School Plant - Minneapolis
5,
Students Handbook - Rochester, Minnesota
pp* 14-5
J
13©
Rslme® as great when admission f e e s are charged by the user, for a com-”1
munlty a f f a ir , and four tim es a s great for any other a ffa ir *
In the
reg u la tio n s o f Kansas C ity, r e n ta ls of the various f a c i l i t i e s are provided
fo r , with the s p e c ific warning "that no performance, ©r entertainment
s h a ll b© given fo r the d ir e c t or in d irect b e n e fit o f a p rivate or com*
tnercial In te r e st except when the Department o f #** Recreation station®
a checker a t the door*
A ll money, a fte r the actu al expense o f conduct­
ing the a c t iv it y has been paid, s h a ll revert to the School D is tr ic t fund*
Checkers are to be paid *.♦ and t h i s i s a f i r s t charge again st the gate***
St* Louis regu lation s prohibit use wfor any performance, e x h ib it, or enter­
tainment given fo r th e f i r s t or in d ir e c t b e n e fit o f a p rivate or com­
m ercial I n te r e s t. . . . ”
Regarding f e e s , th ese regu lation s provide th a t,
”No fe es sh a ll b© charged fo r admission to any function held on the
school premises except those which are for the immediate aim of the school
its e lf*
This r e s tr ic t io n s h a ll not prevent groups*♦* from requiring o f
th e ir membership dues t© defray t h e ir expense® or from receivin g con­
tribution® for the same purpose * * .. t h is r e s tr ic t io n s h a ll not apply to
groups conducting S ocial Centers authorised as such by th e Board of
'
2
Education*”'
Among other regulation® , the U n iversity C ity ru les require
th a t non-school and non-co-school groups "pay a service charge repre­
sen tin g th e pro-rata c o st o f th e operation and maintenance of the b u ild ­
in g, including ja n ito r se r v ic e , in such amount as the Board may determine
1* Rules and Regulation® of School D is tr ic t o f ■Kansas City
March 26* 1936
Sec* 50-56 pp* 38-41
1934
L_
2* R egulations of Department of In stru ction - St* Louis Feb*
Reg* 28 pp* 47-50
J
139
rfrom time to time*"*
On the a p p lica tio n , prospective users are re* ~1
quired to s ta te # ie t b e r i;er not admission fe e s are charged#
Batavia, B ro n x v ille, and Elmira ( New York) use the s ta te code
ex clu siv ely *
the New R ochelle regu lation s merely au thorise th e use
2
"under -regulations and ra te s fix e d by the school board*”
A uniform
charge o f t h ir t y - f iv e d o lla r s i s required fo r a l l use including re­
h ea rsa ls in Poughkeepsie*
High School and Junior High School auditor!*
urns (in Niagara F a lls ) may be used upon payment o f a f i f t y d o lla r f e e ,
with other f a c i l i t i e s l e s s expensive*
For ren ta l o f the stadium,
twenty per cent of the gross r e c e ip ts i s exacted w ith a minimum guaran*
te e o f t h ir t y - f iv e d o lla r s* 3
"The p o licy o f th e Buffalo Board o f
Education **» contemplates that such b u ild in gs s h a ll be used to the
f u l l e s t p o ssib le e x te n t, c o n siste n t with th e provisions of th e Education
4
Law and th e fin a n c ia l lim it of the sohool budget*”
Use for any pur­
pose when an admission i s charged, unless the use i s in connection w ith
t'
regular day school a c t i v i t i e s , Is prohibited*
The Albany, Rochester,
and Ithaca regu lation s do not mention r e n ta ls , but the Superintendent of
Schools in the former " is authorised to grant use .** in accordance with
.0
the r u le s of the Board o f Education*”
The duty o f th e Jamestown "Build­
in gs and Grounds Committee” i s to rent the rooms, gymnasiums, a u d ito r!-
1* R egulations for Use o f B uildings and Grounds, U n iversity Oily
2* Rules and R egulations of Board o f Education - New R ochelle
Nov* 3, 1937 Art* III p* 14
3* R egulations Governing the Us© of School B uildings - Niagara
F a lls October 6, 1933
4m By-Laws and R egulations o f the Board of Education, Buffalo
March 10, 1936 Sec* 3 p* 130
%
5* Rules and R egulations of the Board of Education - Albany
_1931 See* 872 Paragraph
7
p* 13
J
rums, a t h le t ic f i e l d s , and other b u ild in gs under s p e c ific regulations*
The uses permitted are very d e f in it e ly c la s s if ie d !
the schedule o f ra tes
i s both d e ta iled and e x p l i c i t , varying from ten d o lla r s to one hundred
d o lla r s.
The Superintendent o f Schools must be consulted when the Com***
m ittee i s in doubt regarding the propriety of granting a request
Bow fork City by-laws authorize the D irectors of R ecreational and Com­
munity A c t iv it ie s , in accordance with regu lation s adopted by the Board
of Education, on recommendation o f the Superintendent o f Schools, to
permit th e use o f school b u ild in gs and premises*
Those s p e c ific regula
tio n s contain a graduated schedule of r a te s, with a th ir ty -th r e e and one
third per cent reduction when th e building is open for the operation
of a community cen ter, and a fee fo r ja n ito r ia l serv ice when use i s made
on Sunday or for p o lit ic a l meetings*
They provide that when proceeds
of any en te rp rise, to which an adm ission fee i s to be charged, are to
be devoted to purposes not approved by the d irecto r, perm ission w il l not
be granted*®
The Oswego school d i s t r i c t ' s w ell-d efin ed s e t of regula­
tio n s includes a unique c la s s if ic a t io n o f prospective users — where
dom iciled, where proceeds are t o be spent, e tc * , — and a sca le o f ren ta ls
4
based thereon#
The by-laws of C lifto n , tVoodbridge, E lisab eth , and Passaic (Hew
omit any reference to the su b ject o f r e n ta ls,
195?
East Orange ru les
1* P ules and Regulations of the Board of Education - James town
A rt. XVII! pp* 19-32
2.
Bee* 82
By-Laws of Board of Education., Hew fork C ity
Paragraph 7 p. 92
parch 9, 192?
3* Rules and Regulations fo r the Use o f School B uildings and
Property Hew fork City*
4.
Rules and R egulations for the Government and Control o f Public
Schools o f Oswego 1933 Sec* 1 pp. 64-6
J
i merely cen ter r e s p o n s ib ility on th e chairman "for the ren ta l o f school-1
property a t the soheduled ra tes and in accordance with the esta b lish ed
1
p o lic y o f th e Board *.**"
Newark regu lation s require the formation
o f a committee whose duty i t i s to have charge o f a l l school extension
work, and to manage and control the use of the school b u ild in g s for
other than school purposes#
They require the Committee on Newark School
Stadium . . . to arrange a l l schedules# prepare a l l contracts for the
lea sin g o f the Stadium, c o lle c t and receiv e a l l rent and admission fe e s
and disburse the same.
%
N©w Brunswick regu lation s make adequate pro**
v is io n for th e use o f the school f a c i l i t i e s by outside agencies but no
mention i s made o f r e n ta ls.
On th e contrary the s p e c ific jersey City
and Trenton ru les authorise the use o f the schools fo r such fe e s as
may be designated by the board b u t, "these fe e s w ill not be considered
as r e n ta ls, but w i l l be lim ited to operating expenses with a reason*2
able allowance fo r ’wear and te a r ’ #"
"They w i ll not be fix e d a t
large amounts in order to r a ise ad d ition al revenue for school purposes,
but w i l l be regulated to reimburse the Board
in Jersey City
for the
expense incurred#’1 These r eg u la tio n s also p ro h ib it "the d iversion of
funds from other accounts maintained fo r the support o f the schools to
defray th e co st of operation fo r t h is extra use#" and the use o f the
sch ools "when the purpose or r e su lt o f such us© i s personal gain to any
1*
Buies - Board of Education - East Orange
Sec# 6
£# Manual- Board o f Education - Newark 1937-8 Seo# 8
Sec# £3 p# 2b
p« 2
p# 14
3« Buies and E egulations fo r Os© of public School B uildings Trenton #4 p. 4
^Regulations fo r the Bse o f Schools by C itizen s Net o f f i c i a l l y connect­
ed w ith the Schools - Jersey C ity
sec* 35-g
i
J
^ in d ivid u al,. . . "
When admission f e e s are charged, Jersey C ity 's ru les n
require that a very d e ta ile d accounting o f such be mad© to i t s superin­
tendent.
fro n to n ’ s ru les lim it the charges to sp e c ifie d sums fo r ad u lts
and for ch ild ren , u n less the s p e c ia l perm ission of the Superintendent of
B uildings has been obtained*
th ey reserve the rig h t to refu se to grant
such use when the proposed use of th e proceeds i s not approved by
Board o f Education*
In Ohio only two d i s t r i c t s have reg u la tio n s which omit a l l r e fe r ­
ence to t h i s subject, Sp rin gfield and Warren*
Akron ru les merely quote
the sta tu te on th e su b ject o f paying J a n ito r ia l fees*
Cambridge and
Hamilton would seem to exceed the delegated authority o f t h i s sta tu te
by charging fe e s in excess o f th ose fo r J a n ito r ia l se r v ic e when renting
the auditoriums o f th e ir la rger schools*
Ho r e n ta l i s permitted in
A llia n ce except by sp e cia l consent o f the school board, ”Ko Janitor­
i a l fe e s feor charges o f any sort may be made fo r the use o f the school
b u ild in gs for th e follow ing pu rp oses*.*.” but "charges covering lig h t ,
h eat, and Janitor serv ice must be mad© fo r »•* public gatherings not
d ir e c tly a sso cia ted with school work.”* The Bedford ru les provide for
re n ta l fo r publio use for any purpose which does not c o n f lic t w ith the
educational id e a ls of th e sch o o ls b u t, "require th a t a calendar o f a l l
events in volvin g the use of th ese f a c i l i t i e s be on d isp la y in the
o f f i c e s o f the Board o f Education." I t i s the duty o f "the Clerk o f
the Board o f Education to f a it h f u lly c o lle c t a l l the r e n t a ls .* .,
authorise th e re n ta l of th e High School c a fe te r ia under the supervision
1# Rules and Regulations of the Board of Education A llian ce June 6, 1922 Sec* 299 ** 301 p# 30
rdf the head o f the household a r ts department a t a fix e d fe e , esta b lish - !
a d e f in it e schedule o f f e e s and p roh ib it the rental o f the auditoriums
for p rivate gain**1
Cleveland regu lation s d efin e '"an extension use*1
a s "any use o f a bu ild in g a t ether tim es than during the hours then
such building i s r eg u la rly open*"
The r e s p o n sib ility fo r such use Is
placed upon the Commissioner of Housing who s e t s "under such regu lation s
as the d irecto rs o f schools may prescribe****"
"Use by school organi­
zation s i s granted w ithout c o st to th e grantee unless an admission fe e
i s charged or a r t ic le s are s o ld , in which case the co st o f cu sto d ia l
se r v ic e sh a ll be paid****"
A d e fin ite schedule of ra te s, to be applied
in the case o f use by non-school organ ization s, is provided*
These
r a te s do not, however, include the cost o f a guard, nor checker1s f e e s ,
nor the co st o f supervision where such is required*
C o llectio n s or
pledges o f money may not be taken up a t any meeting h eld in a school
b u ilding by any ou tsid e organization .
t h is sectio n are a lso provided#
P en a lties fo r the v io la tio n o f
The regu lation s a lso c la s s if y "meet­
in gs a t which school f a c i l i t i e s are used for the preparation of food
or refreshments to be sold , or a t which food or refreshm ents are so ld as
paid entertainments*"
School board regu lation s fo r d is t r ic t s in North Dakota are not
published but "are part o f the minutes of the Board o f Education*”
1* Buies and B egulations for the operation o f Bedford Public
Schools March 2 , 1928 pp* 20-1
2# A dm inistrative Code o f Board of Education - Cleveland
duly 1, 1921 See* 242-361 pp* 31-3
3* B etters from Superintendent Saxvik - Bismark July IB ,1938
and Super in tead eat S irk - Fargo May 19, 1938. Superintendent Schroeder
Grand Forks July 16# 1938 Superintendent White, Minot May 7, 1938
^We", w rites th e superintendent of Minot, "were trending toward a
♦wider use o f th e school p la n t1 u n til the encroachment o f w.p.A* a c t i v i­
t i e s somewhat disturbed us and so we have reacted again st I t a litt le * * * #
However# with p o lic ie s varying from year to year somewhat due to chang­
ing view points because o f changing School Board personnel a few tr a d itio n s
have been established*"
The communication contains a d e f in it e schedule
o f ren ta l fe e s for the use o f the large high school auditorium; which
" is rather d e f in it e ly the community hall"# and for the use of the
gymnasium*
Few w ritten regulation# a re a v a ila b le for' Oregon* Mo reference
i s made to ren ta ls although provision i s made fo r use of school property#
in th e d is t r ic t o f ha Grande#
the unwritten and non-uniform p o lic y o f
the Pendelton School Board# a s explained by the superintendent follow s;
"For community center# p o llin g places# and non-school uses #*# which are
n o n -p ro fit the School Board makes no charge*
When any organisation or
group d e sir e s to use d ie b u ild in gs fo r p o lit i c a l purpose or some p r o f it taking en terp rise, the School Board charges a l l *the t r a f f ic w i l l
bear'*"
fhe d is t r ic t o f Salem permits fr e e use o f the f a c i l i t i e s for
c iv ic groups and fo r meetings conducted on a n o n -p ro fit b a s is ,
fhe
charge fo r th e ren ta l o f auditoriums or gymnasiums to c iv ic groups i s on
a co st basis# i f die proceeds derived from admission f e e s are used for
chart by or community upbuilding#
fhe superintendent of t h is d i s t r ic t
in d ic a te s some problems which confront a l l d i s t r i c t s , in th e ir a p p li­
cation o f such regu lation s*
What groups are c iv ic In character?
I s a meeting conducted on a n on -p rofit b a sis?
1*
When
How can com plications
b etter from Superintendent Landreth - Pendleton Maroh 22,1938
UB
Hm labor regu lation s be prevented in tji© *aaall bu ild in gs where only
~l
on© ja n ito r i s employed? At the present tim e Salem i s making a study of ■;
the second problem* requiring . a l l organisations charging an admission fe e
to submit an audit of th e ir accounts im m ediately-after, such use* to the
■end th a t a “meeting on a n on -p rofit b a s is ” may be more c le a r ly defined*^
the only mention o f r en ta ls in the regu lation s is* “Where i t i s neces­
sary to open a school b u ild ing on a night* other than Friday* (c iv ic -c e n te r
n ig h t) the f u l l c o s t o f fuel* lig h ts* power* water* and ja n ito r service
Z
must be paid before a permit i s issu ed *”
Madison* the only South Dakota d is t r ic t with published regula­
tions* provides a graduated schedule of r e n ta ls based on the nature o f
the prospective use* included among which is th at o f lo c a l performances
S
o f an a d v ertisin g nature*
The superintendent of P ierre advisee that*
in th e absence of formal rules* he i s “in stru cted t o allow no commer­
c ia l in te r e s ts to use th e school houses fo r plays or eatertainm ents of
any'type*"
T his does not apply to “charge a c t i v it i e s o f e ith e r curricu­
la r or ex tra -cu rricu la r nature*1’
Texas
“Public school bu ildin gs in Austin*
*** and other school property • *» s h a ll be used e x c lu siv e ly for
public school purposes* nor sh a ll any entertainm ent be held »«* except
upon authority from the Board of Trustees*"^
"In order to make uniform
t h e -le t tin g ».* to various in d iv id u a ls •«** sued in order that the
mmmm-m mm mm- m-mm mm mmm-mm m mmmmm* mmmm
„ 1*
.le tte r from Superintendent (Jaiser - Salem May 08, 1938
2* “School Board Rules - Portland May 28, 1038 Chap* V Al - 23
3* Compiled Rules* Regulations and P o lic ie s o f Board of
Education of Independent School d is t r i c t #1* Madison Oct* 11* 1929
Sec. 9: p* 4
193?
L
_
4* Rules o f the Public Schools of th e City o f Austin May S*
Chap. XX p. 24
■
,
—I
%u
p u b lic may f u l l y understand the p o lic y of the Board *.♦” i s Beaumont* s^
preface to a s e r ie s o f r u le s which proh ib it (1) fr e e use except by school
and semi**school o rg an isation s, (2 )* * ., (3) any use by an organisation or
in d ivid u al fo r p ro fit or gain to any organisation or individual#
The
reg u la tio n s a lso require the payment by a l l u se r s, fo r ja n it o r ia l serv ice,
e le c t r ic current,and depreciation or damage#
"Each of th ese item s i s
more than th e average ap p licant estim ates and the sum of the three i s by
no means n e g l i g i b l e # A graduated schedule o f ren ta l fe e s is a lso
provided#
The Calveston d i s t r ic t provides for use to any person, society***
# io can g iv e a sa tisfa c to r y guarantee . . . fo r the prompt payment o f charges,
and forb id s the "charging o f an adm ission fe e to any entertainment or
function held in the school b u ild in g s, except those which are for the sole
and immediate use o f th e school i t s e l f , and excepting a ls o , performances
or ex h ib itio n s given by lo c a l amateur, th e a tr ic a l, m uscial, c iv ic , and
a t h le t ic organ isation s." The Board o f Trustees i s required to f i x charges,
and f i l e a schedule th ereo f, for use made by s o c ie t ie s and a sso c ia tio n s
fo r ce r ta in purposes*^
The D allas regu lation s d u p licate th ose o f
Galveston regarding r e s p o n sib ility fo r prompt payment o f charges, the
charging o f admisslon f e e s , and the preparation and f i l i n g of a schedule
o f charges in the o f f ic e o f th e Secretary of the Board o f Education.^
The use o f 'die school b u ild in gs or grounds by any person . . . for purposes
6
1* Buies and R egulations - Beaumont City Schools Art# IV Sec# 1 pp* 17-8
2# Buies and Regulations - Galveston Public Schools Art.XIII
Sec# 1-5 p* 36
3*
Sec. 81-2
Rules and R egulations - D allas Public Schools Art# XI
p* 33
ro f fin a n c ia l p r o fit or fo r cominer c ia l purposes is a lso prohibited*
”1
Th* Port Arthur regu lation s provide fo r the ren ta l of the gymnasium*
with a fe e determined by th e absence or requirement o f admission charges*
the r en ta l o f the a t h le t ic fie ld # to adm ission-charging organizations at
a fix e d rate# and o f the auditorium# for very s p e c ific purposes a t a
fix e d rate# may also be had*
the use o f a l l property, for purposes of
fin a n c ia l gain, and the use of school pools# as a health measure# are
1
proscribed*
The d l s t r i c t of 'Wichita F a lls a u th orises the Superintendent
o f schools to grant perm ission for use o f th e school auditoriums accord**
lag to the general p o lic y of the board*
A schedule o f r e n ta ls fo r u ses
when admission is# and when i t i s not# charged i s included with a plan
for the d isp o sitio n of the moneys received*
2
The power o f ren ta l,
subject to the approval o f th e superintendent# i s lodged with the p r in c i­
pal in Waco.
He i s a ls o required to c o lle c t the rentals# pay the
necessary ja n ito r ia l expense# and forward the balance to the business
manager*
The schedule o f rates i s provided* varying according to the
3
need fo r lig h ts* heat* and the charging o f admission fees*
The relev a n t regu lation s o f the school d is t r ic t s o f V irgin ia
are v ery meagre*
sile n t*
The ru les o f Portsmouth* lo rfo lk * and loanoke are
Aiexandria, 6 regu lation s are lim ited to e sta b lish in g a f l a t
,4
charge f o r any use (except those l i s t e d ) .
The superintendent of
1* Rules Governing th e T?#e of School Property - Port Arthur
Independent School D is tr ic t O ct. 10, 1928 Sec. 1 p* 1 Sec. 9 p. 2
2.
Schools
Rules* P o lic ie s and Regulations o f Wichita F a lls Public
Aug* 1931 pp. 2 - 9
3. Rules* Regulations and P o lic ie s of Waco Public Schools
Sept. 9* 1935 Sec. 2 p . 5
4 . Rules and Regulations o f th e School Board - City of
^Alexandria May 1954 Sec. 42
p. 16
,
Hluena V ista has au th ority to ren t or permit free us© of the auditorium-1
in th e high sch ool under certa in conditions? ren tal f e e s are based on
admission charges*
th e use o f the school b u ild in gs in Cl in two od i s grant­
ed only fo r meetings open t o th e public* A f l a t fe e
for Janitor service
and tfoe actu al cost of lig h t s and fu e l must he paid and, in a d d itio n , i f
the en terp rise i s a profit-m aking one, a t l e a s t f iv e per cent of the
«
■
f
•t
receip ts*
In Newport News "The use o f sohool property fo r other than
regular sohool work s h a ll be under the control of a committee*** and
when granted s h a ll require a fe e to cover the cost o f lig h t , f u e l, and
Janitor serv ice* * * .”
On th e contrary, th e c i t y of Richmond, lik e
Clintwood, requires th a t the public be admitted a t a l l tim es t o any
meeting held in the sohool building e ith e r by paid admission or without
charge*
Although fr e e use of th e school plant i s permitted under
certa in con d itio n s, p rovision i s a lso made fo r renting (1) basements
fo r suppers, but not any equipment except the sto v e s, (2) rooms for
Sunday schools when the usual c o lle c tio n may be taken by church organiza­
tio n s but not any admission charge or sale o f lite r a tu r e , and (3) rooms,
a t a c o st o f J a n ito r1© serv ices only, "to community organization wish­
ing to fu rn ish regular in str u c tio n for the young people of a lo ca lity ,* ’1
fh e schedule of charges i s an elaborate- one, with many c la s s if ic a t io n s
and su b d ivision s, some o f which are (a) the p articular sch ool, (b)
the p a rticu la r part o f the so h o o l.ti* ©*• auditorium, gymnasium, base­
ment, c a fe te r ia , (c ) th e school term, i . e . summer vs* winter (d) the
1*
2*
graph 2
Dickenson County Schools
Clintwood 1934-1935
pp. 10-1
By-laws - Newport News Public Schools 1931 Sec* ? Para­
p. 8
149
rbime, i t e . afternoon vs* evening (e) fr e e or admis si on-charging u se,
i
e t c .*
With one p o ssib le exception l i t t l e d eviation from the prescribed
" free, comfortable and convenient use*’ o f the sta tu te s i s found in the
school d i s t r i c t s of West V irg in ia ,
th ere i s no charge for use o f the
school f a c i l i t i e s in Clarksburg* except in those oases where an ad­
m ission fe e i s charged*
In Huntington a fla t* hourly rate* based upon
the average co st of ja n ito r se r v ic e , lig h t,w a te r , and fuel* i s charged
for the use of gymnasiums and auditoriums by ou tside organ isation s. "The
Superintendent and Business Manager are given d iscretio n a ry au thority
to f i x charges in cases where the p arties using the b u ild in gs charge
2
adm issions."
Rentals* based upon the s p e c if ic f a c i l i t y used* are
provided in the Morgantown regulations#
The only charge made for use
in Princeton i s the payment o f u t i l i t y b i l l s by the organisation using
the building*
Moundaville’ s r eg u la tio n s make no referen ce to r e n ta ls .
The ru le s o f Wheeling prescribe hourly r a te s , varying with th e f a c i l i t y
used* and with the adm ission charge exacted or non-exaoted*
They
require the payment and se r v ic e of a school stage manager when such .
3
equipment i s used*
Two d i s t r i c t s o f the s ta te o f Wisconsln, B e lo it and J a n e s v ille ,
contain the unusual in te r d ic tio n against su b -le ttin g of a school f a c i l i ­
ty by an ou tsid e organisation#
B e lo it has a revised schedule o f ren tal
1934
1. Rules and Regulations of School Board - Richmond March 23,
Chap. XI p. 21
1934
2 . Rules fo r Overtime Use o f Buildings - Huntington Jan. 12,
p . 47
3* O utline of Duties and R e sp o n sib ilitie s for Employees of the
^Board o f Education - Wheeling March 27, 1934
pp# 16-7
j
^charges*
the r eg u la tio n s of J a n e sv ille not only contain a graded
1
schedule for th e use of classroom s, high school corrid ors, high sohool
auditorium s, scenery, piano, eta* hut a lso require a payment o f ten per
cent of the gross r e c e ip ts from any co n test held on the high school
grounds*
The reg u la tio n s a lso construe ^taking up a c o lle c t io n ” as charg­
ing admission*
Permission t o use a b u ild in g w ill not be granted when th e
1
purpose i s th at o f commercial or p rivate advertising*
The Kenosha ru les
provide a w ell-graduated schedule o f ren ta l charges and prescribe hours for
2
use o f the gymnasiums end auditoriums, etc*
The meager reg u la tio n s for
the c it y o f Milwaukee provide fo r the ren ta l o f the various sohool f a c i l i t i e s a t s p e c ifie d f l a t rates*
3
The reg u la tio n s o f Racine and superior
p rescribe that* *Mo use s h a ll be made of any schoolhouse belonging to the
c it y fo r any other purpose than such as i s d ir e c t ly connected with th e
in te r e s t s o f th e sch o o l, or community, « .. but an appeal may be made to
4
the Board a t any t i m e * . H o d ir e c t reference i s made to t h is subject
In the d i s t r i c t s o f Madison, Oshkosh, and West 4111s although th e la s t
mentioned has a R ecreation D ivision presided over by a Recreation Supervisor*
Utah i s th e only s ta t e in the union, th e s ta tu te s of which
s p e c if ic a lly ban "commercial use* as subh*
« * '•»
4 sectio n ^empowers a l l
wttw*aw* * « » « * wrOTS*
1# Rules Governing Wider Use o f the School Plant - J a n e sv ille
2* Rules end R egulations - Board of Education - Kenosha
Jan* 22, 1924 pp. 34 and 42#$
3* Rules and R egulations - Board of sohool D irectors - Milwaukee
A p ril 5, 1933 p* 31
4.
By-law s,. Rules and Regulations # Board of Education Superior 1932 p* 40
Rules end Regulations - Board o f Education - Racine p* 13
1937
L
5* Rules and R egulations m Board of Education - West A llis
Sec* 503*200
p, 31
-J
161
rboards o f education to permit public echoolhousee#*. • to be used for
"1
any other purpose th at w ill not**** "and requires such boards* ®to make
such charges for the use o f the same as th ey may decide to be j u s t . . . , provided that the d i s t r i c t s h a ll be a t no expense for fu e l or serv ice o f
any kind for any such use or p r iv ile g e and th a t public schoolhouses
«1
s h a ll not be used for commercial purposes.”
Under the *oivio center
a ct" , there i s a clau se which provides, ”In case o f entertainm ents where
an admission fe e i s charged, a charge may be made for the use o f the
2
p rop erty.”
An opera house owner sought and received , in the d is t r ic t
co u rt, an in ju n ction p erp etu ally "restraining and enjoining the Board o f
Education o f th e Horth Summit Sohool D is tr ic t from allow ing the high
school to be used for holding public or private d a n ces..* , and other kinds
o f entertainm ent . . . for which an admission fee i s charged.”
I t was
a lle g e d that school property was used for commercial purposes in compet it io n w ith h is opera house.
I t appears th a t the student body had con­
ducted a lyoeum course, sometimes w idely ad vertised , to which members
o f the 0 . 0 . were admitted fr e e but the public paid an admission charge,
although no ren t was paid to the school board.
The court passed upon
many important p r in c ip le s in volved, such as: the d iscretion ary power
conferred upon school boards, meaning o f recrea tio n a l a c t iv it y , fa ir
v s. u n fair com petition, e t c . , but continued, "We must conclude th at
w hile the conducting o f ••• where an admission i s charged may have some
bu sin ess a sp e cts, y e t in view of th e wording o f our sta tu te s . . . the
sch ools were not engaged in ordinary business tra n sa ctio n s, but perm itted
L
1.
Schools Laws o f the S ta te of Utah 193$ Sec. 75-22-6 p . 46
2.
I b id ., Sec. 75-22-2
p. 46
16$
^h© student body a o t iv it ie s for the purpose o f train in g the student©
1
in b u sin ess management end seIf~gov©mment***
n
Many years previous, a resid en t of th is s ta te commenced a ctio n
ag a in st two of th e sohool tr u ste e s to r estra in Hiem from perm itting the
publlo sohool house, to be opened to , and used fo r , publlo and p rivate
dances*
They planned to remove th e station ary desks and to ©tack them
in corners*
Upon appeal from the d i s t r i c t court where the case m s d is ­
m issed, t h i s same sec tio n of th e s ta tu te s was quoted sad in terp reted ,
" It must be conceded that n eith er th e S tate *** could le g a lly lev y and
c o lle c t a tax fo r Hie purpose of b u ild in g a dance h a ll • ♦
fh ia being
so i t n e c e ssa r ily fo llo w s th a t th e board of tr u ste e s have no r ig h t, and
i t would be in v io la tio n o f th e ir sworn duty for them, as i s proposed
in t h i s case t o , in e f f e c t , convert a public sohool bu ild in g in to a
public and p rivate dance h a ll •••* I t i s d if f ic u lt to conceive how i t
would be p o ssib le to make a greater in terferen ce with th e seatin g of
2
the sohoolhouse than that proposed by th e tr u ste e s in t h i s c a s e ,”
Sohool board regu lation s fo r the various d is t r ic t s of t h is s ta te
are almost unobtainable*
The Eureka d is t r ic t lim its i t s r u le s to a ban
on any use fo r commercial purposes, and a sanction for admission charges
3
a t the door when used for a c h a rita b le, recrea tio n a l, purpose*
The
reg u la tio n s o f the Provo d i s t r ic t quote t h is se c tio n o f the sta tu tes
“In border lin e cases Hie clerk may request the renter to f i l e an a f f l ­
i t IS P (2d) 900 Beard v Board o f Education o f fo rth Summit
School D is tr ic t Pec* 10, 1932
2*
26 Utah 464
78 Pao. SOS
h©wta v Bateman and Bates Aug* 16, 1903
b
3*
Pules Governing the be© of School B uildings » Eureka 1937
163
>davit t o th e e f f e c t th at th e purpose for which the b u ild in g i s used i s "1
not ’ commercial* and th e ad m inistrative o ffic e r s are empowered t o decide
whether or note the use is le g itim a te .”^
A f l a t rate i s sp e c ifie d for
the use of each auditorium and gymnasium In the Salt hake City schools*
The ra tes fo r night use and for admission charging organ isation s are,
however, higher than fo r afternoon u se s.
An ad d ition al sectio n provides,
"modification in rates being permitted when j u s t if ie d by purposes for
which the b u ild in gs may be used or by the f a c i l i t i e s or s e r v ic e s requir­
ed**2
I t i s obvious th at a greater use of the school f a c i l i t i e s i s made
p o ssib le in the d i s t r i c t s of those s ta t e s , whose sta tu tes e x p lic it ly
authorise the re n ta l of school property*
A ll the d i s t r ic t s of a given
s ta te are far from unanimous in t h e ir in terp reta tio n o f such s ta tu te s .
Many d i s t r i c t s f a i l t o make use o f the delegated au th ority or n eg lect to
prepare regu lation s designed to f a c i l i t a t e th e execution of such s ta tu te s .
t
This i s caused a t le a s t in some measure by a lack o f understanding o f the
philosophy underlying such l e g is la t iv e enactments*
SbMMAHY
On© o f the most co n troversial asp ects o f the use of sohool proper­
ty , a s evidenced by the abundance of j u d ic ia l In terp retation s thereon, i s
the commercial use o f sohool property.
1.
Os© of sohool property for commercial purposes is not le g a lly
1.
O rganisations and Rules o f the Board o f Education - Provo
C ity Schools 1836 sec* IE pp. 18-7
2* Rules, Regulations and A dm inistrative P o lic ie s - S a lt lake
O ity Public Schools August 10, 1937 Sec* P 1-3 p* 100
j
154
1perm issible*
2.
1
The only ju d ic ia l d e fin itio n of "commercial use" i s so
inadequate- .that th e absence of a s a tis fa c to r y d e fin itio n i s s t i l l the
g r ea te st need to promote harmonious adm inistration and uniform policy*
3*
the courts w i l l not consider the commercial aspect o f a
us© "in order t o defeat the w ill o f the leg isla tu res* "
4*
The sta tu te s and the courts make I t le g a lly perm issible for
school d is t r ic t s to en ter in to gas and o i l leases*
The absence of
m inerals lim its the p o s s ib ilit y of such lea se s to a very few s ta te s of
the United States*
5*
The b u ild in g, equipment* and maintenance of teachers* homes
i s not a commercial use of school property*
One th ird of the s ta te s
sanctioning such us© require a vote of th e e le c to r s to make such con­
stru ctio n le g a lly perm issible! where contested* such construction is
always upheld on the p rin cip le o f need in e ffe c tu a tin g the real purpose
of education*
6*
Tutoring of p u p ils on school property i s a commercial use and,
therefore* gen erally prohibited by mandate and school board regulations*
7*
Rooms for the use of public sohool purposes may be rented in
ex ig en cies, by express mandate o f seventeen states*
8*
The sta tu te s o f eigh teen sta te s e x p lic it ly au thorise ren tal
o f school property for a v a r ie ty of purposes, at varying charges* under
d iv e r s ifie d regu lation s! the sta tu te s o f f iv e s ta te s sanction such
ren ta l by im plication*
9*
The r e n ta ls charged for use o f the school property by outside
organ isation s are based upon several contingencies* as fo r example* the
purpose fo r which use i s made* the extent o f the use, the co st o f
J
155
^servicing such use* the exten t of public In terest in th e use, and the
1
community advantages o f such use*
10*
Profit-m aking organ isation s or ventures a re, by the weight
o f au th ority, discouraged or prohibited from using the school property.
11.
"Commercial u se” of the school property is s p e c if ic a lly
forbidden by s ta tu te in only one s t a t e i y e t prohibited by sohool board
regu lation in a m ajority of s ta t e s .
12.
Eental of school property, in and o f I t s e l f , i s not in te r ­
preted as commercial, but rather considered reimbursement fo r operating
expenses sustained.
13.
Twenty-five sta te s in the nation have maintained statu tory
s ile n c e on any aspect o f the ren ta l of school property;
sustained
s ile n c e , p ro h ib itio n s, and perm issions are th e r e s u lt of school board
in te r p r e ta tio n .
In th e afore-mentioned tw en ty-five s ta te s , fourteen c
court oases were based upon r en ta ls of school property; but the d is ­
cretio n of the school board was upheld in a m ajority o f the oases.
14.
s ta tu te s .
The co u rts are most lib e r a l in th e ir in terp reta tio n of said
The only lim it placed on the d isc r e tio n granted school boards
I s th a t i t be n eith er unbridled nor u ltr a v ir e s .
J
n
CHAPTER IT
RELI0XOUS OR SSCTARJAH USE OP THE SCHOOLS AID SCHOOL PROPERTY
"Perhaps to no other su b ject, hrought before the®* have the court®
given more profound con sid eration , involving as i t does the rig h t o f
r e lig io u s f r e e d o m # c o n c lu d e d Ward Keeseeker in h is study of S tate
Control of R eligion in 1928.
Yet d esp ite such profound consideration
the problem, to some ex ten t, s t i l l remains unsolved#
What c o n s titu te s
Sectarian use of the schools? "Webster d efin es ‘ sectarian ' as pertaining
to a s e c t o r sect®i p ecu liar to a sects b ig o tly attached to the te n e ts
and in te r e s ts o f a denominations one of a party in r e lig io n which has
separated i t s e l f from the Established Church, or whose ten ets d iff e r
from th ose o f the p revailin g denomination in a kingdom or sta te *•**
The words 'secta ria n purposes1 in the C on stitution are used in the
popular sens© that a r e lig io u s sect i s a body or number o f persons
united in b e lie f s , and th a t every sect is secta ria n w ithin the meaning
o f th at word as used in the C onstitution and th a t i t includes the
teaching o f any doctrine upon which th e C hristian denominations agree."
2
A few further interpretation® o f t h is mooted word may h elp to en ligh ten
the subject a l i t t l e *
"Sectarianism includes adherence to a d is t in c t
ry
p o lit ic a l party as much as to a separate r e lig io u s sect*
“th e
p roh ib ition again st sectarian in stru ctio n (C onstitution Art* 10, 13) in
*m-rn
Schools
«**>•«»
1#
Ward Ke©se'oker<l State Control o f R eligion in Public Schools 1928
2*
1# lev* 373
8*
134 Mo* 298
35 S.W. 617
May 12, 1896
State
v. Ballock
January 1882
s t a t e ex r e l K elleher
v
St* Louis Public
' th© common sch ools m an ifestly re fe r s e x c lu siv e ly to in stru ctio n in
r e lig io u s d octrines and -the p roh ib ition i s only aimed at such in stru c­
tio n as is sectarian , i . e .
in stru ctio n in r e lig io u s d octrines which are
adopted by some r e lig io u s s e c ts and rejected by others*
Hence to teach
ex isten ce o f a Supreme Being, o f in f in it e wisdom, power, and goodness,
and th a t i t i s th© h igh est duty of a l l men to adore, love and obey Him
i s not sectarian because a i l r e lig io u s sects so b e lie v e and teach*
In­
stru ctio n becomes sectarian when i t goes further and in cu lca tes doctrine
1
or dogma concerning which the r e lig io u s se c ts are in c o n f lic t * ”
2
"H eligious and sectarian are not synonymous" ruled the Colorado court.
BIBLE HEADING IK THE SCHOOLS
Obviously, with such a v a r ie ty o f in terp reta tio n s as to the mean­
ing of th e word, t h i s task i s not an easy one but it i s , n everth eless,
an important one*
The f i r s t use to be treated under the a lleg ed
"sectarian use" is the d a ily B ible reading in public sch ools.
The fa c t
that the sta tu te s of so many s ta te s require such d a ily reading might
lead the reader to in terp ret i t , a school u se.
I t is her© included,
however* because i t has so freq u en tly been alleged a non-school use*
Keeseeker *s study o f t h i s problem in 1928 i s a very thorough one, in
th at he analyzes S tate C on stitution s, S tate Sohool Codes, Court
D ecisio n s, and current p ra ctices, as revealed by communication with
school a u th o rities*
1*
This d ig e s t w i l l in d ica te the present le g a l
76 Wis. 177
44 N *W, 967
s ta t e
v
City of Edgerton March 18, 1890
2* 81 Colo* 276 People ©x r e l Vollmar v Stanley ©t a l
A pril 1927
188
n
(-authority in dozens© or p roh ib ition o f th is practice*
The S tatu tes
Twelve state© d e f in it e ly require the reading o f the
B ib le every day in the public schools*
Alabama and jfirkansaa, (uher©
the b i l l so providing i s found in th e crim inal laws of th e s ta te , and
a fin© o f tw en ty-five d o lla rs i s lev ied for f i r s t fa ilu r e to do so and
d ism issa l i s th© penalty fo r th e second offen se)#
The "English B ib le ”
without comment i s pro scribed# but no pupil may be required to take
2
part and any pupil may be e x c u s e d from the room#
In Delaware# "at
le a s t f iv e v erses are prescribed for the opening of the school in the
classroom or assembly •.» but no other r e lig io u s serv ice s h a ll be held
except 'the repeating o f the Lord* s Prayer#" Compulsory attendance is
3
prohibited#
Schools in Florida are required to do so "without s e c ta r i­
an comment#” A c e r t if ic a t io n of tea ch ers’ compliance with same i s requir4
ed in the monthly rep orts submitted#
One chapter each from the Old
*and Hew Testaments i s prescribed in Georgia but# "Pupils may# upon
request o f parents# be excused from join in g or p a rticip a tin g in Bible
Reading or R elig io u s in str u c tio n or service#"
fi
In Idaho# d a ily B ible
Readings ‘"without comment# from a s e le c te d l i s t of passages furnished
by the S tate Department# are required#”
"Inquirers must be referred to
6
th e ir parents or guardians for rep ly to questions of interpretation*"
mmtmttm
2206
m MW • » « * - « * «tfhpr
1#
Alabama State Sohool Code 1927 Art# XXXV Sec* 594-5
p. 211
2#
Pope *s D igest Section 3614 March 4# 1930
3#
(School haws o f Delaware 1929 Art* XIV Sec* I - I I I pp* 62-3
4*
The School laws o f Florida (annotated)
8*
Georgia Sohool Laws of 1937 Chap* 32-7 Sec* 32-708
1936 Sec* 612-2 p* 110
p* 22-3
6* School Laws o f the State o f Idaho 1938 Art# VI Sec* 191-32p* 64
-j
Kentucky's sta tu te requires ’’teachers in charge to read or cause to be
read a portion o f the B ib le . . . and no ch ild s h a ll be required to read
the B ib le a g a in st the w ishes o f h is parents or guardians*.**®*
The Maine sta tu te j u s t i f i e s the mandate:
®fo insure greater
secu rity in th e f a it h o f our fa th e r s, to in cu lca te into the liv e s o f the
r is in g generation th® s p ir itu a l values necessary to the w ell being o f
our future c iv iliz a t io n s , to develop those high moral and r e lig io u s
p r in c ip le s e s s e n tia l to human happiness, to make a v a ila b le to the youth
o f our land the book which has been the in sp ira tio n o f the g r e a te st
m asterpieces o f lite r a tu r e , a r t , and music, mad which has been the
strength o f the great men and women o f the C hristian era , these s h a ll be
. . . , d a ily or a t su ita b le in te r v a ls , readings from the Scriptures w ith
s p e c ia l emphasis upon the Ten Commandments, th e Psalms o f David, the
Proverbs o f Solomon, th e Sermon on the Mount, and the Lord's Prayer,
. . . no denominational or secta ria n comment or teaching and each
student sh a ll g iv e r e sp e c tfu l a tten tio n but s h a ll be free in h is own
forms o f worship.®
The sta tu te s o f Massachusetts a ls o require d a ily Bible
reading "without w ritten note or oral comment, but a pupil whose parent
or guardian makes known any con scientiou s scruple again st p a rticip a tio n
in such p ra ctice s h a ll not be required to read from any p articu lar
version nor to take any personal part in the reading.®
1.
pp. 15-6
Kentucky Common School Laws
3
"At
June 1934 Chap. II Sec*4563-7
S.
Laws R elating to Public Schools - State o f Maine 1935
Sec. 126 pp. 48-9
3* Senoral Laws R elating to Education - Massachusetts 1982
Chap. 71 Sec. 31 p. 20
160
r ie a s t f iv e v erses take® fro© th a t portion of tbs Holy Bible known as
n
the Old Testament s h a ll be read **♦ withoot comment • *. in the presence
o f the pupils *.* by th e teacher in charge a t the opening of sch o o l,
upon ©veiy school day unless there i s a general assemblage • • • * in vhioh
event the reading s h a ll be done or caused to be done, by th e p rin cip al
• • •," i s the order o f
the Hew Jersey School law, follow ed by a sectio n
1
forbidding any other r e lig io u s serv ice or exercise#
th e e f f e c t iv e
Pennsylvania sta tu te requires the reading o f, "at le a s t ten verses from
the Holy Bible without comment .*» upon each and every sohool day
"
and provides th a t charges w ill be preferred again st those f a ilin g to
2
do so#
The Tennessee sta tu te makes i t the duty o f the teacher "to read
or cause to be read • • . a s e le c tio n fro© the B ib le," but p roh ib its the read3
ing o f th e same sectio n more than tw ice a month#
The Indiana# Iowa#. Kansas# and Oklahoma s ta tu te s have a sort o f
negative authorization#
"The B ible sh a ll not be excluded from the public
schools of the s t a t e »"
"the B ible sh a ll not be excluded from any public
school or in s t itu t io n in the s ta t e , nor s h a ll any c h ild be required to
6
read i t contrary to th e w ishes of h is parent or guardian#* Ho sectarian
or r e lig io u s doctrine s h a ll be taught, but nothing in t h is a c t s h a ll be
construed to prevent reading o f the Scriptures#"^
m m ***
78
m
«■*«*
The l a s t mentioned
« • # * « * • #■##**«#
1# Hew Jersey School Laws - 1938 Chap. XIV Sec# 18*14 * 77 and
pp* 135-6
2* The School Laws o f Pennsylvania 1936 Art# 39 Sec# 3901 p* 283
3* Public Sohool Laws o f Tennessee 1936 Art* VII Seo#190
Paragraph 4 p# 65
L
4# School
Laws of the S ta te o f Indiana 1935 Chap * VII S ec#158 P*76
8# School
Laws of the State o f Iowa - 1938 Chap*214 Sec*4268 p*209
6« School Laws o f Kansas - Revised - 1938 Sec* 162 p* 60
Sec* 198 p. 68
J
p r o h ib its the teaching or in cu lca tio n of sectarian doctrine but adder _1
N o th in g In t h is se c tio n s h a ll be construed t o p rohib it the reading o f th#
Holy Scriptures*”^
fo r th Dakota’s perm issive le g is la t io n follow st **fhe B ible sh a ll
not be deemed a sectarian book, i t sh a ll not be excluded from any public
sohool, i t may a t the option o f the teacher be read in school without
sectarian comment, not to exceed ten minutes d a lly and no pupil s h a ll be
required to read i t or be present *«« contrary t o th© w ishes o f h is parents
t
or *. **”
S im ilarly South Dakota’ s sta tu te provides that* "No s e c ta r i­
an doctrine may be taught or Inculcated in any o f the public schools of
the s t a t e , but the B ib le without sectarian comment may be read there in*”
Court D ecisions
The Soulh Dakota sta tu te i s s t i l l ex ta n t, al**
though when a sohool board so ordered in 1925, a doxen or more children
o f the Homan Catholic f a it h refused to attend v h i l e the King dames
version was being read or the Lord ’s Prayer repeated*
When they were
ex p e lled , to be returned only upon w ritten a p o lo |y , the courts were
invoked for a decision*
*On th# broad c o n s titu tio n a l ground", said the
court, "of an Infringement o f r e lig io u s lib e r ty , we must hold such
a ctio n unlawful**** Mandamus w ill iss u e to compel th e sch ool board to
readmit such ch ild ren without apology and th erea fter permit them to be
absent during th e reading*"
d ecisio n follow s?
An important and s a lie n t sentence in the
"Religion cannot be enforced by law, i t must r e s u lt
from honest co n v ictio n •”
the opening o f the d a ily le g is la t iv e sessio n
with prayer was c ite d to show the lack of connection between an open1. School Laws o f Oklahoma 1935 Art* r a m Sec*514p* 144
2* North Dakota General Sohool Laws 1935 Chap* XXV Sec*359 p*12S
3* The Public School Laws of South Dakota 1937 T itle V A rt*11
[Sec *267 p* 9$
J
S
162
ring prayer and sectarianism*
1
-j
Other ca ses adjudicated in the s ta te s requiring t h is fora of
opening e x e r c ise led to much heated, p ro lix and abstruse argument*
In
1921 the school board o f Home, Georgia refused t o obey .an ordinance,
directing, them nto require some portion of ihe King dames version of
th© B ib le* # * ,ttb©eaus© they f e l t they were in charge of the schools*
The Protest&nt p rin cip a ls r e a lise d how such enforced reading could be
considered discrim ination again st the C atholics and dews*
The court
held that th e new c it y charter of August 1918 gave the cominis s i oners
t h is power, that the B ible i s not secta ria n , cannot be excluded from
th© sch o o ls, and th a t excusing p u p ils from attendance i s no stigma*
A lone d issen te r in d icated h is opposition to any ordinance which
’’provided a system fo r worshipping God*”
2
The c o n s tit u tio n a lity of
the n egative perm ission granted in th© Iowa sta tu te s was debated in 1884
on the grounds th a t such made the school a p lace of worship but the
court held th at such an in ter p r eta tio n "would be placing a very strained
-1
con stru ction upon the sta tu tes* ”
Explaining .th is statu tory p rovision ,
the court continueds ’’This makes i t optional With sohool teachers****
Hi© ob ject *** we think i s not to prevent the casual use of a public
bu ild in g as a p la c e 'fo r offerin g-prayer or doing other a c ts of r e lig io u s
worship, but to prevent the enactment o f a law whereby any person can
1*
6$ 8*IU'543
226 B*W* $48
S tate ex r e l fin g er v leidman e t a l dun© 27,
2.
152 0a* 765
110 S. E. 895
?/ilkerson v c it y o f Bom© larch 24, 1921
S.
64 Iowa $67
20 N *W* 475
1929
L_
lo o re
v lo n ro e e t a l
Sept* 18, 1884
J
163
r b© compelled to pay tax#© for building a place designed to be used
^
d is t in c t iv e ly as a place o f worship*11 A sim ila r Kansas sta tu te was up­
held in an a ctio n in it ia t e d by a patron, vfaose son was required to d e s is t
from studying and remain orderly'during the opening ex er c ise s Of the
t.
sohool, "which consi sted o f repeating the Lord ’a Prayer, the Twenty-third
Psalm*. .
fh© patron was not appeased by the perm ission granted h is
son to en ter the room f if t e e n minutes a fte r th e regular sohool hour*
the court held th a t the e x e r c is e s of which the p la in t if f complained
were not a fom of r e lig io u s worship or the teaching o f sectarian or
r e lig io u s d octrine, that the p u p ils who desired gave th e ir a tten tio n and
took part* those who did not were a t lib e r ty to follow th e wanderings
of th e ir own im agination.
Said the court, "The n ob lest id e a ls of moral
character are to be found in th e Bible*
To emulate these i s the
supreme conception of citiz en sh ip *
The charge of secta rian use of th e sch o o ls, by a patron of th e
B rook sville School, was based on the reading o f the King dames B ible and
the o ffe rin g of a short prayer by th e teacher a t the opening of sohool
each morning*
Th© Kentucky court defined the questions "Is the King
James tra n sla tio n ••• a sectarian book?n
I t was argued wTo be sectar­
ian the book must show th at i t teaches the peculiar dogmas of a sect
and not alone th a t i t i s comprehensive as to include them by the
p a r tia l in ter p r eta tio n o f i t s a d h eren ts.*.«
We b e lie v e th a t reason
and the weight of authority support the view th a t th© B ible i s not of
i t s e l f a secta ria n book, and when used merely fo r reading in common
schools without note or comment by teachers i s not sectarian in stru c-
l16,1904
1.
69
76
Kan* 53
Pac* 422
B illia r d
v Board o f Education, Topeka April
y oowu
164
rtio n nor does such us© o f th© Bible make the sohoolhous© a place of
1
worship*
The a c tio n of & lo c a l school committee in prescribing the "English
Protestant" version o f th© B ib le was protested in an old Maine case*
A
p u p il, who refused to read in th is p articu lar version but agreed to read
the Douay v ersio n , was expelled*
The court held* "school Committees have
authority to s e le c t th e books to be used,#** reading the B ible i s no more
an in terferen ce w ith r e lig io u s b e lie f than would reading th e mythology
2
of Greece or Borne .*«•"
Another very old d ecisio n upheld the con­
s t it u t io n a lit y of th e M assachusetts law*
In t h is case the p u p ils were
required to bow th e ir heads during th e prayer but not during the B ible
reading.
One student was exp elled because she refused to bow her head,
and her fath er declined to w rite a note requesting that she be excused
from such practice#
The court held*
“The power o f a sohool committee
to pass a l l reasonable ru les and reg u la tio n s for the government and
management o f public schools under th e ir charge is olear and unquestion­
a b le .* .* The order was reasonable and v a lid since i t went no further
than to require the observance of q u iet and decorum during the r e lig io u s
serv ice with which the sohool was opened*
I t did not compel a pupil to
jo in in the prayer but only to assume an a ttitu d e which was calcu lated
to prevent in terru p tion , by avoiding a l l communication with oth ers,
during the serv ice."
'« * « * • # «*»■*»«
«*»•*» 4* 4 * 1* <|»
<hw* 792
®kak©tt v B rook sville Graded School D is tr ic t
1905
2*
36 Maine 376
61 Am* Dec 256
Donohue
3*
94 Mass* 127 S p ille r
12 Allen 127 r
v
Bichards 1864
v Inhabitants of Woburn Jan* 1866
.
-J
Sohool Board Regulations
The Hot Springs, Arkansas regulation s
require the teacher to "“read, the B ible d a ily without comment as pre1
scribed by Arkansas law*1*
Th© d i s t r i c t of Wilmington, Delaware
in te r p r e ts the statu tory requirement to read f iv e .verses d a ily as a
minimum mandate and a u th o r ises'th e reading o f a t le a s t ten verses d a ily ,
without comment, in ad d itio n to the Lord’s prayer*
The reading o f
appropriate Bible s to r ie s in the kindergarten and f i r s t and second grades
2
may be considered a fu lfillm e n t o f the regulations*
Three of Georgia*s
d is t r i c t s have ru les designed t o f a c i l i t a t e th© execution o f th is
s ta tu te but they lack uniform ity*
A tlanta1$ regu lation s prescribe the
reading of the King James version of the B ible without a comment*
Those
of Columbus require B ible Beading and die r e c ita tio n of the Lord’ s Prayer
4
but no other r e lig io u s ex ercises*
The ru les o f Macon authorise the
superintendent to use h i s d isc r e tio n in determining the devotional
exercises*
The n egative requirement o f the Indiana sta tu te s i s inter-*
preted as perm issive by th e Indianapolis d is t r ic t which provides th a t,
"Morning e x e rc ises* .* may include the reading or r e c itin g of the
S criptures or other appropriate ex ercise *.* follow ed by the r e p e titio n
1.
P o lic ie s of the Hot Springs C ity Schools - May 1938
A r tic le V In S ection 12 p . 10
Z* Rules o f Board o f Public Education - Wilmington Sept*
18* 1933 Art* I I I Sec* 10 p* 11
3* By-Laws* Buies and Regulations of Board o f Education,
A tlanta IS34 pp* 54 and 60-1
pp. 14
1930
4* R ules and Regulations of Columbus Public Schools 1923
and 17
5* 67th Annual Report o f Public Schools of City of Macon
p. 63
rdf th e Lordf s Prayer and by appropriate sin g in g *m I t warns, "Teacher s~l
sh a ll be ca refu l to guard again st introducing sub jects of a sectarian
1
or partisan character*®
The La Porte B is t r ic t requires reading of
g
"some appropriate part of th e B ib le without comment" once each week*
Hot any of the Iowa d i s t r i c t s in terp ret the negative permission o f the
sta tu tes*
Only two Kansas d i s t r i c t s regu late t h is practice*
"The
Board o f Education encourages the reading of the B ible as a part of the
opening e x e r c ise s each morning* t h is to be done without comment*"
A
rule o f th e Topeka regulations* follow in g a quotation o f the statute*
s e ts aside ten minutes a day for appropriate readings from the Holy
S criptures or from the Everyday Bible by Charles M. Sheldon*
e x e r c ise s must be submitted to the Board for approval*
These
4
Kentucky*s p o sitiv e mandate i s enforced by sohool board regula­
tio n s in Covington, Paducah and Hewport, the l a s t mentioned sp ecifyin g
the "English” version of the B ib le*5 Maine1s unique sta tu te i s quoted
in part in the Bangor r u le s .6
The Auburn r u le s require reading '^y the
1# Rules o f the Board o f School Commissioners of Indianapolis
Sept* 8, 1931 Art* XII Sec* 4 p* 15
2* Rule® and R egulations o f Board of Education La Porte 1929
Paragraph 1? p* 9
3*
Eov. 1936
Rules and R egulations of Board of Education
p. 15
Pittsburg
4 . Rules and Regulations o f Board o f Education - Topeka
dan* 4 , 1926 pp. 10-1
5* Manual o f the Board of Bduati on **. Covington 1926 Sec* 73
p* 22
Rules and R egulations adopted by the Board o f Education - Paducah
1934 Art* XXI? Sec* 6 p* 19
Rules and Regulations of the Board of Education - Hewport 1931 - Art.IX
Sec* 24 p, 19
6* Rules and R egulations of the Sohool Committee - Bangor
January 1928 Chap. X? Sec* 8 p. 20
j
187
“teacher or p u p ils of a portion of the Scripture, or the lo r d 's Prayer
M assachusetts d l s t r i c t s studied: Arlington, Boston, E verett, Fitchburg,
Holyoke and Lynn, d a ily B ible reading i s required in accordance w ith
statu tory prescription* in setae eases by reference to said statu te* in
2
others by quotation from i t .
The d i s t r i c t s of C lifton* Mm Brunswick*
Jersey City* P a ssa ic, and Woodbrldge* Mew Jersey have reso lu tio n s designed
to f a c i l i t a t e the execution o f t h is sta tu te , the f i r s t mentioned a lso
requiring the r e p e titio n o f th e Lord’ s prayer*
3
The signing o f a
hymn and th e r e p e titio n of th e Lord* & Prayer are permitted in Passaic*
together with in str u c tio n in sound morals. The teaching o f a l l secta rian d octrin es Is prohibited*
te r se d ig e st o f the sta tu te*
4
Bach o f the other three d is t r ic t s has a
Despite th e sta tu to ry penalty fo r fa ilu r e
o f observance* not a l l of th e d is t r i c t s of Pennsylvania have rules
1930
1* Buies and R egulations o f the School Department - Auburn
Chap. IV Sec. 11 p. 7
s
Zm Rules o f school Committee and Regulations fo r the Public
Schools A rlington * 1938 Rule 8 p. 6
Rules o f School Committee' and Regulations o f the Public Schools
Boston 1935 Chap. XI S ec. 170-1 p, 71
Rules and R egulations o f School Committee Everett Sept. 1935 Chap*111
Sec* 22 p. 26
Rules of School Beard* <*ity of Fitchburg Sept. 15, 1937 Chap# VI
Sec* 3 p. 17
Rule® and Regulations o f School Committee * Holyoke Deo* 5* 1927
Rule VI p. 12
Rules o f School Committee » Lynn Oct. 9* 1934 Chap* VI Sec. 17 p. 26
3.
Sec. 25
See* 7
L_
Manual o f Board o f Education ■+ C lifto n Feb. IS* 1933
p* 19
4 . Manual o f Board of Education - Passaic July 1933 A rt. VI
p. 18
J
r designed to e f f e c t t h i s purpose.
Harrisburg# however# does so provide1
and In ad d ition permits# "at th e option o f the teaoher, prayer# the
whole not t o occupy more than f if t e e n minutes."
Hole 51 san ction s the
discharge of a teaoher for fa ilu r e to read the Bible#
Lancaster and
Philadelphia a lso regu late t h is p ra ctice but "without any comment or
2
remark# *
and in th e la tte r case "a hymn may be sung"# Reading Vs ru les
3
prescribe th© sta tu to ry ten verses from the Bible#
Two of the
Tennessee d is tr ic ts # N a sh v ille and Knoxville# e f f e c t the statu tory pur­
pose# by prescribing "at le a s t ten verses#"^
Statutory S ilen ce
The sta tu to ry silen ce of the other t h ir t y
s ta t e s has been va rio u sly interpreted*
Arizona1s silen ce# plus i t s
p roh ib ition again st "conducting r e lig io u s e x e r c is e s in the schools#"
i s maintained in i t s school board regulations#
5
I l l i n o i s 1 sile n c e can
probably be a ttrib u ted t o the Supreme Court’ s lengthy d ecisio n which
ruled that* "The wrong a r is e s not out of the p articu lar version o f the
B ib le or form o f prayer used# whether th a t found in the Douay or the
King James version,*## or the p a rticu la r songs sung# but out o f the
1# Rules and R egulations of Hie Board of School D irectors Harrisburg Rule 48 Dec* 28, 1084 Sec* 11 p. 91
2* Rules and Regulations o f Hie Board of School D irectors Lancaster Sept# 27# 1927 Art. X I V S©q# 10
By-Laws and Rules of Hie Board o f Public Education - Philadelphia
1936 Rule XI Sec# 7
3* Rules and Regulations o f School D is tr ic t of C ity of Reading
Sec. 767 p. 27
4* Rules for Organization and Government of Public Schools
N ash ville Nov. 26# 1928 Paragraph 16
p# 20
By-Laws (Revised) K noxville Feb* 8# 1937 Sec# I.G. p* 18
8#
p*6S
i—
School Laws of Arizona * 1981 Chap* 21 Art* VI S e c .1044
J
169
’compulsion to jo in In any form of worship*”
1
in t h is same d ecisio n
n
th© court held that ©seclusion, whether voluntary or otherw ise, i s a
stigma on the p u p ils concerned*
"The truths of the B ib le ”, maintained
the cou rt, "are the tru th s of r e lig io n which do not come w ithin the
province of th e public schools*
Ho one den ies th e ir importance***.”
Thus was reversed the d ec isio n rendered In 1880, which held that such
reading,did not make the school a place of worship,
that of 1891
which f a ile d to uphold a student who refused to obey the rule requiring
3
attendance a t chapel or submit an excuse therefor*
Tot in the d is ­
t r i c t of Hock Island d a ily B ible reading without comment, followed
by r e c ita tio n , (by the p rin cip al or in concert with the p u p ils) o f the
Lord1s Prayer i s required ten minutes before the opening of school in
4
the morning.
I s t h i s regu lation a v io la tio n of ih e in ten t of the
1910 d ecisio n , or does "before th© opening of school” preclude th at
in ter p r eta tio n t
A note in the Loutsiana sta tu tes reminds the reader o f a
supreme court order proh ib itin g d a ily B ib le reading*
The order was
Issued on the b a s is o f a complaint because th© Caddo regu lation s
requested th a t, "principal and teacher open the d a ily sessio n w ith
readings from the B ib le , without note or comment and when the leader
1*
92
June 29, 1910
2*
H*E#
251
People
*
V
Board o f Education of D is tr ic t 24
95 111* 263
McCormick v Burt-Ottawa March 17, 1880
35 Am* Hep* 163
3* 137 111* 296 Poster North v Board of T rustees - U n iversity
o f I l l i n o i s March 30, 1891
4* General Rule© and R egulations o f Board o f Education - Rook
Island July 1, 1926 p. 14
L
J
Haras w illin g to do so* o ffa r ,the Lord*s Prayer.*' The school boardf s
"1
w illin g n e ss to excuse th e defendants* children from attendance on such
e x e r c ise s was held by the court as an admission o f d iscrim ination and
"subjection to a r e lig io n stigma", and the reading from "the Hew Testa­
ment as th© word of God as an infringement on the r e lig io u s scruples
o f the Jews."^
The Nevada and Hew Mexico statu tes* p roh ib itin g the
use of books, t r a c ts , or papers o f a sectarian or denominational oharac■
te r , are, in p r a c tic e , a prohibition against B ible reading#
t
The Utah
s ta tu te , which Ward Keeseeker avers i s the b a sis for an assumed pro­
h ib itio n against Bible reading in some of the Utah d i s t r ic t s , reads as
follow s*
. In prescribing th e stu d ies and ex ercises and in the
management and control o f such in s t itu t io n s no p a r t ia lit y or preference
sh a ll be shown to one sect or r e lig io u s denomination over another*
Nothing in t h is sectio n s h a ll be deemed to p roh ib it the givin g of any
moral in str u c tio n * .
but such in str u c tio n s h a ll be given in connection
with th e regular school work."
The 1891 opinion o f the Attorney
General of Washington, "that B ib le reading in the schools i s a r e lig io u s
ex ercise w ith in the meaning o f the sta te C onstitution and thereby pro4
h ib ite d by th a t document*”
follow ed in 19OS by* " It i s unlawful to
open school w ith prayer*11
1*
68 So*
March 22, 1915
I 16
i s another n egative in terp reta tio n o f
Harold ©t a l v Orleans Parish School Board
2* The School Code - S tate of Nevada 1935 See* 6087 p* 124
The Hew Mexico School Code 1931 Sec# 178 pp# 76-7
' 3*
School Laws of' th© -State of Utah 193$ Sec* 76-1-4
4*
Opinion® o f Attorney General
1891-2
p* 142
5*
Opinions o f Attorney General
1909-10 p* 135
p*53
S ta tu to r y silen ce*
In December 1930 a s u it was in s titu te d , in the
s ta te co u rts, to compel the sta te school hoard to require B ib le reading
in th© p u b lic schools*
Following th© cou rt*$ conclusion - "Such a s u it
can be maintained only by th© Attorney General sine© a private c it is e n
cannot show any d ir e c t sp e cia l in ju ry -sustained and mandamus does not
l i e to control the d isc r e tio n o f the State school board*.*,"
was denied*
the w rit
In th® appeal to the nation*© h igh est court the ju r is d ic tio n a l
statement was submitted but the. appeal was dism issed for want o f a sub2
s ta n tia l fed era l question#
Regarding the cred itin g of B ib le study
toward graduation the Attorney General averred, "The le g a l ob jection to
the proposed system of B ib le Study i s th a t the courses o f study are
.3
made a part o f th© public school curriculum."
When the case was appeal­
ed to the courts I t was held*
"If th e sentim ents o f •the people have so
far changed as to demand th© th in g s sought to be done, th© remedy i s by
4
amendment to Hie C onstitution*"
The s ile n c e of th e Wisconsin sta tu te s
i s e a s ily in terpreted in Hie lig h t of a d ecisio n rendered by th©
Supreme Court in 1890, holding th a t the reading o f th e B ible in the
Idgerton public schools made the school a place o f worship.
"It is
b elieved " , said the co u rt, "that t h is s ta te was th© f i r s t which exp ress-
293 Pao^*X000 s ta te
$iowalter December 12, 1930
2* 284 U.S. 673
Showalter Oct. 19, 1931
Washington ** r e l C lithero v
sta te of Washington ex
3#
Opinions o f Attorney General 1915-18
4.
102 Wash. 389
175 Fae* 35
May 10, 1918
r e l Clithero v
p* 254
_ ^
n
%
n
w
S tate ex r e l Dearie v F rasier - S .D , Bo* 24
Fly embodied the p roh ib ition in I t s fundamental law*”
Ward Keeseck--"1
e r ?a study r ev e a ls th a t in practice the Wyoming statu tory sile n c e i s an
assumed prohibition*
In terp retation of Statutory S ilen ce
Such sta tu to ry sile n c e ha®
been interpreted as an implied perm ission in the sta te s o f C aliforn ia,
Colorado, Connecticut, Maryland, Michigan, Minnesota, M ississip p i,
M issouri, Montana, Nebraska, New Hampshire, New York, North Carolina,
Ohio, Oregon, Rhode Islan d , South Carolina, Texas, Vermont, V irg in ia ,
and West V irg in ia , although no mention i s made of th is subject in
the school board regu lation s o f the various d i s t r i c t s studied for the
s t a t e s of Maryland, Michigan, Mianesota, M iss iss ip p i, M issouri, Montana,
Nebraska, and South Carolina* The r e c it a l of the Lord’ s Prayer i s
authorised once each week in the d is t r ic t of Bridgeport, Connecticut*
Said r e c it a l plus B ible Reading i s authorised in the Hartford regula­
tions*
A ll the d i s t r i c t s studied fo r th e s ta te of New Hampshire *
Laconia, Manchester, Nashua, and Rochester d esp ite said s ile n c e ,
require the d a ily reading of the Scriptures followed by the Lord’ s
Prayer.
2
New York C ity i s the only New York d i s t r i c t which, by
reg u la tio n , a v a ils i t s e l f o f t h is in terp reta tio n of statu tory silence*
• » mm« •
**>
■* «M
1*
*2
■# m
70
44
g
177
967
m re^ Weiss v P is tr lo t Board March 18,
1890
, 2* Rules and Regulations o f th e School Board of Laconia N*H*
1924 Chap* 11 Sec* 10 p* 8
Rules o f the School Committee and R egulations of Public Schools Manchester - /Ip ril 1928 Chap* 111 Sec* 10 p*. SO
Nashua - Board o f Education * Rules and Regulations 1931 No* XII p*13
Rules end Regulations - school department - Rochester 1988 Revision
Chap* V ll Sec* 9 p* 38
1927
3* By-Laws of Board of Education- City of New York March 9,
Sec* 87 Paragraph 82 p* 105
,
173
;CharXotte 13 sim ila r ly represen tative of North Carolina, requiring d a ilj
"Bible reading by the teaoher, the rep e titio n o f th e Lord* s Prayer, and
appropriate singing by the p u p ils, provided th a t no.comment of a
■ 1
secta ria n nature sh a ll be made*"
Only t w d is t r i c t s o f Ohio require
B ible reading in the sch o o ls, although th e ir rig h t to do so was c le a r ly
indicated by th e court on two occasions*
P rin cip a ls in the d i s t r i c t o f
Warren are resp on sib le for seeing th a t such i s made a part of th e school
2
.
- ..
program.
Xn S p rin g field , the burden is placed upon teach ers, who are
a lso authorised to us# th e ir d iscre tio n in determining whether singing,
3
or prayer, or both should fo llo w the reading*
B r is to l and Pawtucket
are the only two Rhode Island d i s t r i c t s a v a ilin g them selves o f the
im plied perm ission,
the former allow# some d isc r e tio n to the teacher in i
"The morning sessio n o f each day s h a ll commence with *. • as a devotion*
a l e x e r c is e , or a t the option of the teacher with prayer*"
■4-
•
The la tt e r
sanction# '"devotional e x e r c ise s which s h a ll include repeating th e Lord’ s
5
prayer,***"
Only one o f the many Texas school d is t r ic t s studied,
Beaumont, requires i t s "teachers to read to th e ir resp ectiv e c la s s e s
1* By*Laws and Buies of the Board o f School Commissioners *
C harlotte 1933*4 Art, I II Sec* 6 p* 12
2*
Sec* 99
Sec* 2
1934
Rules and Regulations of Board of Education * Warren May 8,1934
p* 26
3* Rules o f Board of education • Public Schools Springfield
Paragraph 20 p* 18
4* By-Laws o f the School Committee * Town o f B r is to l Dec*
A rt. X Soo. 8 p* 15
5* Rules and R egulations of
Chap* III Sec* 9 p* 12
School Boardo f Pawtucket
21,
1930
J
174
r-
.
1
1selected passages from the.H oly B ib le*”
.
Three of the V irgin ia school I
d i s t r i c t s in terp ret th e statutory s ile n c e . Hewporfc flews cen ters such
Z
r e s p o n sib ility in the principal*
Norfolk req uires, "the reading by
the teaoher without not© or comment, o f a portion o f th e B ib le or B ib le
S to r ie s and r e p e titio n of 1&© Lord’ s Prayer#
Portsmouth requires
"Bible Beading without note or comment and rep e titio n o f the Lord’ s
■4
Prayer*” '
Mound sv i l i e ’ s (West V ir g in ia )in terp reta tio n requires the
B ib le Beading and Lord’ s Prayer as part o f th© opening exercies*
Suggested B ible Headings fo r ©very day of the school year chosen on the
S
b a sis of a weekly theme are provided for the teaoher*
This ^implied perm ission” in terp reta tio n o f the statu tory s ile n c e
has been upheld by th e cou rts in the s ta te of Colorado - "to the extent
that the B ib le i s not such a sectarian book th at i t must be excluded
from th® school lib rary*”
"A place o f worship means a place s e t ©part
fo r t h i s u s e ,” sa id th© court*
Children cannot be required against
the w i l l of the parents or guardians t o attend th e reading#
1*
Art* XIII
©
A
Rules and R egulations - Beaumont C ity Schools March S i, 1937
p# 62
2* By-Laws - Newport Hews Public Schools 1931 Sec* H I
Paragraph 16 p* 3
3*
Aug* 1934
4*
Rules and R egulations ~ Horfolk Public School System
Paragraph 9 p* 2
Rules and Regulation a and By-Laws - Portsmouth 1936 Sec* 31
p* 22
6* Rules and Regulations for Teachers - Marshall County - Rule
66- pp* 8-1$
6*
81 Colo* 276 People ex r e l Vollmar
v
Stanley A pril 1927
J
170
’teaoher * 3 reading from a book known a 3 "leadings from the Bible" a t
^
•the ©lose o f th e school se ssio n by order o f th e school board of D etro it,
Mlohigan m s a lso upheld by the cou rt* t h is order a lso required the
excusing o f a l l p u p ils from being present upon ap p lication of the
parentH
In 1918 the Attorney general of Michigan m s ca lled upon to
answer some questions relevant t o t h i s subject*
(1) "Gan a school
board us© public b u ild in g s eith e r during school hours or a t other times
fo r g iv in g courses in r e lig io u s subjects.**?"
Attorney General resolved further questioning*
Th© negative reply of the
2
Such in terp reta tio n was more recen tly upheld by the Minnesota
co u rt, although t h i s was contrary to an opinion rendered by the Attorney
General t h ir t y years previous*
A teacher, a t th e opening of school
each morning, read from th© King James version of the Old Testament, a
portion o f those s e le c tio n s found su ita b le by the superintendent*
O bjectors had been permitted to r e t ir e from the room during the reading*
In su stain in g t h is p ra ctice the court reasoned!
"We submit i t to be a
strain ed construction to hold that because the teaoher reads a short
ex tra ct from th e B ible each day the school room Is converted in to a
place of worship**** As to the wisdom of the p ractice o f reading
ex tr a c ts from th e B ib le, we do not d esire to express an opinion fo r th at
3
i s l e f t to the lo c a l school board*"
l * H11I S*!?*
S
n
JS *W»
c ou
December 6, 1898 * <
2*
f ir g in ia
P f e if f e r v Board of Education « D etroit
B ien n ial Beport o f Attorney General, Michigan 1928 - 8 p .630
214 H.WV* 18^
A pril 1927
Kaplan v Independent School D is tr ic t o f
J
r
The State Superintendent of Montana absented wi f said reading
i s done without comment*n Chief J u stic e S u llivan of Nebraska asserted*
"The law does not forbid th© use of the B ible in the public schools *♦#
The point where the courts may in te r fe r e i s where the use • • • has
degenerated in to abuse, where a teaoher ••• has v io la te d the C onstitution
by becoming a sectarian propagandist.**# ih eth er or not i t i s prudent
or p o lit ic to permit the reading o f the Bible**# is a question for
school a u th o r itie s* m
At th e same tim e, the court held that th e sin g­
ing of hymns and o fferin g prayer to the D eity according to the usages o f
the sowoalled Orthodox E vangelical churches was so s e lf-e v id e n tly
i
sectarian th at d iscu ssio n was unwise*
B ib le reading at the opening
ex e r c ise s was held law ful by the A ppellate D ivision o f the New fork
Court in a very recent case#
2
Approximately seventy years ago t h is question was a frequent
source o f controversy and was appealed to the c h ie f s ta te school o ffic e r
on many occasions*
In April 1870 Superintendent Gilmour ruled, "Beligious
e x e r c ise s that are held before nine A.M. and are not compulsory do not
*2
v io la te any le g a l rig h t* 1*
Superintendent Weaver held on A pril 23,
1870 and again on June 6, 1872 th a t, "The a c tio n o f the tru stee In
d ire ctin g the reading o f th e Scriptures***has no au thority in law, on
the other hand there is nothing to prevent •»• in the presence of such
1#
City
S tats
v
288 N^Y* .3 ^ 1 7 5 ^ h©wis
March 31,1936
3*
1870
91 N»W* 846
J u d ic ia l D ecisions
Soheve
v
p* 525
1901
Board o f Education, New York
#2847 (Anonymous) A pril 18,
m
1 m may attend v o lu n ta rily ! but - a pupil hag;
present a t the reading**1
a rig h t t o dec lin o to bo
^
Superintendent S ic e had previously ruled,
"A teacher has no rig h t to consume any portion o f th e regular school
I
hours in conducting r e lig io u s ex ercises# *
Superintendent Spencer,
about one hundred years a g o , averredi "Schools may be opened with
prayers before school hours vshen there i s no compulsion to attend **♦*
But i f they come in to the room before the usual school hours, and
choose to rearain there during prayer, they must preserve the order
3
and decorum b e f it t in g such an occasion#”
S t i l l e a r lie r Commissioner
Draper ruled that such reading and "singing o f hymns” should not be
h eld during the hours custom arily a llo tt e d t o th e performance o f
4school work #*##w
Be a lso held th at pu p ils may not be compelled to
attend such reading and sin g in g , then held before the opening of the
school session*
^Superintendent Dix* s d ecisio n o f 1837 was sim ilar in
B
meaning*
When some C atholic fa m ilie s were denied permission to have
th e ir ch ild ren remain ou tsid e during the reading of the Scriptures
and the bordf s Prayer, on the grounds th a t " it caused disorder out­
sid e the room and a lo s s of time and a disturbance when they entered",
they appealed to Superintendent Buggies who maintained th at!
m m «*-«■»»*#*•*#» ***•.»#
1*
Ib id #,
L
Ibid*,
p# 624
(Anonymous) Aug* 23,
1870
2* Ibid *, p* 525 (Anonymous June 6, 1872
p# 527 (Anonymous) Feb* 6, 1868
3*
'Ibid*,
p* 526
(Anonymous)
May 15, 1839
4*
Ib id * ,
p* 531
(Anonymous)
$pv* 18,
6*
Ib id *,
p* 532
(Anonymous) 1837
1809
J
178
r
.
1
“D evotional e x e r c is e s cannot be held in school hou rs.”
—*
The d e c isio n s rendered in two c a se s in th e s ta te o f Ohio were
based on th e p rin c ip le th at the le g is la t u r e of Ohio* by i t s sile n c e *
had placed the management o f the public schools under the con trol of
boards of education,
t h is would deny th e cou rt’ s rig h t t o in te r fe r e
by d ire ctin g what in str u c tio n should be given or what books should be
read*
In dve e a r lie r case* vhen th e Board o f Education adopted a
r eso lu tio n .prohibiting B ible reading in th e C incinnati sch ools, an
in ju n ction was sought by some of the r e sid e n ts.
Twenty-three years
la te r an in ju n ction was sought in th e Ohio Court o f Common P leas t o
prevent the school d i s t r i c t from requiring such reading a s a part of
the opening exercises*
The fo rce of th ese d ecisio n s, based on the
id e n tic a l p r in c ip le , succeeded in p roh ib itin g, in the former cage,
2
and perm itting in the la tt e r case, the d a ily B ible reading#
The school tru ste es of one o f the school d i s t r i c t s o f Texas
had in terpreted the sta tu to ry s ile n c e as an
implied perm ission and
had, th e r e fo r e , passed a r e so lu tio n sanctioning B ib le reading*
repeating o f the lord*a Prayer and the singing o f appropriate songs.
Pupils were not compelled to jo in in t h is e x e r c is e , but they were
required to be present and to behave in an orderly manner*
In up­
holding the school board* th e court reviewed many phases o f the
1*
Ib id * ,
p. 631
2*
23 Ohio St* 211
13 Am* Rep. 233
(Anonymous)
$0WP£ of Education of C incinnati Minor
e t a l 1872
Ohio r*P . 140 * N essie v Sum 1896
L
May 27, 1884
;
179
1question but held that the e x e r c ise s shown to have been indulged in
by the teach ers did not render the school secta ria n -within the meaning
o f the C onstitution*
f,W© do not undertake t o s ta t e any ru le a s t o # ia t
1
w ill constltut# a place of wor.ship*'w'
In conclusion i t may be here ind icated th a t th ere i s l i t t l e
unanimity of le g a l opinion m the question "Coes B ib le reading con­
s t it u t e a .sectarian u$a of the schools1’? Reference to the tab le w ill
in d ica te th a t twelve s ta t e s require such reading*
seme prescribe' the
number o f v e r te si others provide a penalty fo r non-complianc©*, 0 m
j u s t i f i e s •the sta tu to ry mandatei
many p roh ib it comment ‘thereon* Some
require ’c e r t if ic a t io n of compliance w ith the sa id ruling* some lim it­
ing readings to those taken from th© Old Testament# &m p roh ib its the
reading o f the same s e c tio n more than tw ice a month*
four s ta te s -have
a n egative au th orisation fo r t h is form o f exercise*, and two s ta t e s
have e x p l i c i t perm issive le g isla tio n *
Where con troversies were
adjudicated in th ese sta tes* the courts were* however* unanimous in
upholding the c o n s titu tio n a lity of th e said statu tes*
Many school
d i s t r i c t s located, in .th e afor©-mentioned s ta t e s have reg u la tio n s
designed t o f a c i l i t a t e th# execution o f t h is statute.*
Shirty s t a t e s have s ta tu te s s ile n t upon t h is subject* said
s ile n c e being in terp reted a s a
prohibition l a nine s ta te s and an
im plied perm ission In twenty-on# s ta te s *
Of the nine s ta t e s where
there i s an assumed prohibition* three have court d e c isio n s a# bases
X*
1908
L
s ^ j f T lli
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7
S ta tu te s p ro h ib it p a r t i a l i t y to one s e c t o r denomination
1.
2.
3.
IL
il
A ttorneys G eneral P ro h ib it Bible Reading
S ta tu te s p ro h ib it "R eligious Exercises in Schools"
B i l l 3 8 p r o v i d i n g i n t h e ' C r i m in a l C o te
C h il d r e n o u s t b e e x c u s e d f r o m r e a d i n g u p o n r e q u e s t
S u p e rin te n d e n t t o u s e d i s c r e t io n
iS?
©
2
/
3
i
w
il
y
I
S ta tu te s s p e c ific a lly perm it B ible Reading
z
Ito f
>
3
1
/
4 . D e c i s io n o f 1 9 1 0 r e v e r s e d t h a t o f 1 8 8 0
S . R e q u ire d b e f o r e , o p e n in g o f s c h o o l
8 . C a s e c a r r i e d t o U n ite d S t a t e s S uprem e C o u rt
in
r
h
fo r such assumptionsj on© has the opinions o f the Attorney General as
supporting authority* end on© a record of appeal to th© nation*©
h ig h est tribunal*
In th e reg u la tio n s of one d i s t r i c t , in a sta te
inhere court authority i s th e b a sis of an assumed p roh ib ition , may
be found a requirement for d a ily B ib le reading*
Bight s ta t e s of th©
twenty* one mentioned have d i s t r i c t school board reg u la tio n s a s s ile n t
as the s ta tu te s upon which they are based*
The remaining th irteen
vary from one having a sin g le d i s t r i c t , with reg u la tio n s based upon
the im plied perm ission, to one in which a l l of the d i s t r ic t s studied
regu late t h is p ractise*
the r egu lation s a ls o vary from a simple
permit to do s o , to a s p e c ific suggestion fo r the reading for each
day o f the sch ool year#
Court d e c isio n s rendered in e ig h t of these
s t a t e s support d ie “s ile n c e a s an im plied permission* theory*
Tears ago the s ta t e o f Hew York was the g rea test centre o f con­
troversy over t h is p r a c tic e , th© various c h ie f s ta te sohool o f f ic e r s
having been c a lle d upon to render numerous d e c isio n s ‘thereon*
The w eight of a u th o rity would seem to in d ica te th at B ible reading in
the public schools i s not sec ta r ia n use of the property*
WEARING A RELIGIOUS GARB
The S ta tu tes
The s p i r i t , which characterised many o f the
“B ib le reading” co n tro v ersies in the public sc h o o ls, i s exceeded In
anim osity and a cerb ity by th e tenor o f the d isp u tes concerning the
wearing o f a
r e lig io u s garb in the c la s s rooms * Pennsylvania*©
sta tu te provide©i “No teacher in any public school of the Commonwealth
L
i s pormitted to w a r in said school or ■whilst engaged in th e perform**
ance o f h is or her duty as such teacher * m y dress* mark* emblem or
in sig n a in d ica tin g the fa c t th a t such teacher i s a member or adherent
Of any r e lig io n s order* sect* or denomination.*’*
This le g is la t iv e
a c t was passed on dune 27* 1898* palpably as an expression of public
p o licy on t h is subject* s ix months a fte r the s ta te r s h ig h est court had
affirm ed th e d ecisio n of -the lower court in d eclarin g th a t such
p ra ctice was not ille g a l*
In t h is case a perpetual in ju n ction m s
'■ sought to r e s tr a in •th e employment of S isters* wearing th e ir d is tin c tiv e
r e lig io u s habits* in th e public schools* an a lle g e d sectarian use
o f the property.
The oourt held*
** . . . there i s doubtless room for
argument a s t o the propriety and wisdom of employing anyone to teach
in a p a rticu la r «*» but we are not now to determine uhether the
d ire cto rs acted w ise ly but to determine under the law
o f the
C onstitution* -there being no le g is la t io n on th e sub ject matter
v o lv e d .,♦* The court wonft In terfere with the school d irecto rs in
th e ir discretion**** The law has not made the court school
d ir ec to rs
Only one school d i s t r i c t o f a l l those studied fo r t h is
sta te * Harrisburg has been f i t to incorporate the le g is la t iv e enact*
ment in to i t s regulations*
The c o n s titu tio n a lity o f the a c t was not
te ste d u n til 1910* -when the school d irecto rs of the «Joy Township
4801
1*
The School laws o f Pennsylvania 1918 Act# XLVII1 See*
p* 299
2*
^
m
dohn %song e t a l v G a llitse n Borough
School D is tr ic t Hov.12* 1894
3* ■ Rules and R egulations of the Board of School D irectors
JBarrieburg Dec* 28* 1934 Rule 81 See. 17 p . 104
m
r
■were in d icted
n
in court fo r a v io la tio n o f t h is act*
a c t c o n s titu tio n a l, the court maintained*
n
Declaring the
i t i s d irected against
a c t s , not b e lie f s and only a gain st a c ts o f the teacher w h ilst engaged
in th e performance of h is or her d u tie s a s a teacher • *•♦ Prim arily i t
i s the province o f the le g is la tu r e to determine what reg u la tio n s w ill
promote the e f fic ie n c y o f th e school system and tend to
ment o f the ob ject fo r -whichi t was e sta b lish e d ,
the accomplish#
i t is- only where such
r eg u la tio n s a re c le a r ly shown to be in v io la tio n of the fundamental
law th a t the cou rts,even though en terta in in g a d iffe r e n t opinion from
th at of the le g is la tu r e a s to the n e c e s sity fo r the wisdom or
%
escpedienoy o f adopting them, may annul them,”
Oregon *s law ordains s
"After th e passage o f t h is a c t , i t s h a ll be unlawful for any teacher
in any public school of the s ta te of Oregon to wear in said school,
and w h ile engaged in the performance o f h is or her duty, any dress or
garb o f any r e lig io u s order, s e c t , or denomination*"
&
A s p e c ific
mandate in the Nebraska code forb id s teach ers, "to wear in said
school or w hile engaged in th e performance o f h is or her duty any
dress or garb in d ica tin g th at the teacher i s a member or an adherent
3
o f any r e lig io u s order, s e c t , or denomination *•*#"
«»«* m urn«*«*»*?'«•*» •»•*+***
1*
229 Pa, S t. 132 commonwealth
v Herr July 1, 1910
2.
Oregon School laws * 1931
Chap* XXIV Sec, 36
3*
Uebraska School laws 1933
<*. 1936
p. 113
p. 160
L
Sec. ?9 **
** 2406
J u d ic ia l In terp retation
A very recent case was p recip ita ted
^
because the school d i s t r i c t was organised as a public school on a tr a c t
of land belonging to St* Boniface Homan C atholic parish*
the school was St* Boniface*
th e name on
the school d i s t r i c t leased three roomsj
»
the three tea ch ers, paid by the d is t r ic t , were Benedictine nuns who
wore th e r e lig io u s garb including the rosary etc*
In the cou rt’ s
affirm ation o f 'the judgment o f th e lower court* the p ractice of wear­
ing the r e lig io u s habit in a public school was again frowned upon*
The
court concluded* "The s ta te superintendent o f public in stru ctio n w ill
not be required by mandamus to recognise a school d is t r ic t as a public
school d i s t r i c t ,,* * i f the only school in the d i s t r ic t i s sectarian ,
though organised, o ffic e r e d , and c e r t if ie d as a public school district."'*'
The le g is la tu r e s of th ree sta tes have thus passed enactments p roh ib it­
ing the p ra ctice o f tea c h e rs1 wearing dress s ig n ific a n t of th e ir
r e lig io u s b e lie fs *
In two of th ese s t a t e s , d isp u tes regarding th is
p ra ctice have been appealed to the co u rts,
Only one school d i s t r ic t
has regu lation s containing a recognition of t h is s ta tu te .
In many s ta te s having no le g is la t io n on t h is su b ject, contro­
v e r s ie s have a rise n in which th e, or one o f the major issu e s was th is
very asp ect of "sectarian use" o f the schools*
In Hew York sta te for
example, a s e r ie s o f th ese d isp u tes, beginning as e a rly as 1887, was
appealed to the c h ie f s ta te school o f f ic e r s ,
Iflhen the Niagara Board
o f Education took over St* Raphael1s Catholic School a t a ren tal of
one d o lla r per year to be maintained as a p ub lic school, Superintendent
County
1*
v
122 Neb. 454 State ex r e l P. S* D is tr ic t Ho* 8 Cedar
Charles Taylor Feb* 6, 1932
T)raper, in a lengthy discussion* ruled on the subject o f renting the
property,^
""1
He a lso held th a t th e teachers should be required ”to d is ­
continue the use in the schoolhouse o f th e d istin g u ish in g dress of the
r e lig io u s order*. . . "
2
An appeal m s made to Superintendent Skinner
nine years later* when th e Board o f Education o f West Troy had leased
rooms in S t. B ridget*$ parochial sch ool.
5
Among other ru lin gs was the
proh ib ition again st th e s i s t e r s ’ wearing the r e lig io u s garb w hile teach 4
lag*
Meanwhile th e c i t y o f W atervliet took over the town o f Troy, and
sin ce the same con d ition p ersisted at S t. B ridget’ s school, Superintend­
ent Skinner’ s advice and a ssista n ce were again sought*
He reitera ted
h is previous d ecisio n , but t h is time ruled that funds should be w ith­
held from t h i s d is t r ic t u n til a s a tis fa c to r y compliance had been e f f e c t 5
ed.
About a year la te r an appeal was heard again st the Poughkeepsie
Board o f Education, which had rented four rooms for use as a public
1
school from th e adm inistrator of S t. P eter’s Catholic Church.
Again
Superintendent Skinner r eite r a te d h is p o sitio n again st the wearing of
g
a r e lig io u s garb in th e classroom.
When the Corning Board o f Education
1*
See Chapter 111
p. 98
2* J u d icia l D ecisions pp. 633-8
Education March 24, 1887
3*
Leander Colt v Board of
See Chapter 111 p. 99
4 , Ibid.* pp 538-54 Payette B. Durant v Board o f Education
■#4618 Wov* 25, 1896
6. I b id ., pp 554-9 Samuel Kennedy v Board of Education,
May 15, 1897
#4722
6* I b id ., pp. 660-8 Edward Keyser v Board of Education
Dec, 23, 1898
186
^leased & former parochial sohool
1
n
from S t. Hary*$ Warn* C atholic Church,
he h eld , "The r e lig io u s garb i s a sectarian in flu en ce and ought hot to
be perm itted."
2
In the appeal brought
the Lima Board o f
8
Education which lea se d rooms i s St* Brendan’s h a ll. Superintendent
a g a in s t
Skinner repeated h is oft-heard d ecisio n s and issu ed an order restra in in g
the sehooi board from r e tir in g the s is t e r s for the follow ing year*
4
The case reached th© courts when a new tru stee fa ile d to comply with
6
the superintendent*a restra in in g order*
In reviewing some o f the
reasoning o f th e lower cou rt, the higher court held:"While * ,. the
s ta te superintendent o f public in stru ctio n had no express authority to
e s ta b lish regu lation s as to the management o f public sch o o ls, such
au th ority was c le a r ly implied th e r e in # ..* A regu lation esta b lish ed by
such superintendent p roh ib itin g teachers . . . from wearing d is t in c t ly
r e lig io u s garbs •*• Is a reasonable and v a lid ex ercise o f the power conferred upon him not because the wearers o f such apparel should be exclud­
ed from teaching in th© p u b lic schools ,** but because the in flu en ce
o f such apparel i s d is t in c t ly secta ria n ."
6
I t i s now t h ir t y - f iv e
years sin ce such a question has been ra ised in New fork S ta te .
Th©
con sisten cy o f th© superintendents* denunciations o f t h is p ra ctice
1.
See Chapter I II
p. 99
2.
I b id ., p* 568 Bugen© Lockwood v Board o f Education Idaroh S I,
1898
3
.
§©© chapter I II
p. 99
4.
I b id ., p . 572 William A . F erris v Henry A. S ylvester #4642
5.
I b id ., p. 575 O’Connor v Hendrick May 88,1905
A p r il
16,1902
6* 184
II .Y . Hep* 421 Bora O’Connor v Hendrick A pril 17, 1906
J
L
_
187
rmakes i t safe to conclude th at wearing a r e lig io u s habit in a public
^
school i s considered a sectarian use of the schools in t h is state#
Despite I llin o is * statu tory s ile n c e , a case was heard about f i f t y
years ago, when a taxpayer sought to enjoin a school board from main­
ta in in g school, in a basement rented fro © a church, which they had done
1
fo r a period o f ten years*
Many questions were involved but the court
h eld , in p art, that the sohool board had nothing to do with the attend­
ance a t Mass, r e c it a l o f the Angelus, e t c , , sin ce they were-wholly
voluntary, and th a t the employment o f Catholic teachers i s not forbidden
by law.
As la te as 1918 a sim ilar case was s e tt le d in the courts of
Iowa, the s ta tu te s o f which are a ls o s ile n t on t h is subject*
In March
1905 the public school was disposed o f because o f i t s inadequacy and an
upper room, in a two sto ry building adjoining a church, was leased for
a period of ten years.
$he lower flo o r was a parochial school* Catholic
s is t e r s , wearing th e r e lig io u s h ab it of th e ir order, and paid by the
board of d ir e c to r s, taught th e school*
the many and varied asp ects of
t h is b a se include a lengthy d issen tin g opinion but the d i s t r i c t was
ordered to move the school#
Said the court*
"Whether a school i s
public or sectarian i s com pletely r e fle c te d by the r e lig io u s books
used, th e r e lig io u s emblems adorning the w a lls, the d is t in c tiv e ly
r e lig io u s garb worn by the tea ch ers, the evidence o f r e lig io u s design,
the purpose o f the building and the proximity to the church in
question**## The renting of rooms in such manner and under such con­
d itio n s a s to merge the public sohool in to another school, which i s In
i_
_
1#
See Chapter III
2*
121
111*297
p* 97
M.M illard v Board of Education dan# 25, 1887
_l
188
!~part devoted to secta ria n teach in gs, i s such an abuse of d iscr e tio n a s ”1
to open the door to in ju n ctive r e l i e f . ’1*
In the town o f Luxemburg, Wisconsin, the school d i s t r i c t had for
about twenty years rented eerta in rooms in a parochial school b u ild in g,
and paid the teach ers, who wore th e ir r e lig io u s h ab its w h ile teaching.
When the taxpayers brought a ctio n , the d i s t r i c t court adjoined the con­
tinuance o f the sectarian p ractices and th e teaching by the nuns, but
refused to enjoin the maintenance of the d is t r ic t school in the parochial
2
sohool b u ild in g , whereupon the case was appealed.
Since the c ir c u it
court had s e ttle d the question of teaching in a r e lig io u s h a b it, t h is
subject was not touched upon by the higher court.
3
The inference that
employment as tea ch ers, of nuns o f the toman C atholic church who wear
the dress o f t h e ir order w hile teach in g, is v io la tiv e o f th e s ta tu te s ,
i s a lso contained in a d ecisio n rendered by the Texas court. ^
Contrasted with th e a foresaid view point i s the very recent
a ctio n brought by some taxpayers again st the school d is t r ic t of Glad­
stone in North Dakota, to r estra in four teachers from wearing r e lig io u s
garb or dress w h ile engaged in teach ing.
The t r i a l court refused for
want of incrim inating evidence or a sta tu te applicable or pertaining to
the matter in controversy*
In concluding the court held*
n'We are a l l
agreed th a t th e wearing of 1he r e lig io u s habit described . . . does not
convert the sohool in to a sectarian sohool w ithin the meaning o f th e
1*
182 Iowa 691 Sheldon Knowlton v Henry Baurahover dan. 18,1918
«
137 Wis, 147
. .
118 N.W. 353 Gorner ©t a l v School D is tr ic t No, 5
Nov. 27, 1908
Luxemburg
l_
S.
See Chapter I I I
4,
163
p* 98
S JN. 127 Adkins
v Heard
Jan. 21, 1914
J
189
rCongtit\ati 0 n.
Such h a b it, i t i s tru e, proclaimed th a t the wearers
n
were ©embers of a certa in denominational organization; but so would
wearing the emblem o f th e C hristian Endeavor S ociety or the Epworth
League#
The laws o f th© sta te do not prescribe the fashion o f dress
o f the teachers in our sohools*
whether such would be wise i s not a
n a tte r fo rth © courts to determine . ..# The fa c t th at the teach ers oon~
tribu ted a m aterial portion of th e ir earnings . ## i s not v io la tiv e of
the C o n stitu tio n ..* # fo deny such would be a denial ©f .r e lig io u s
1
liberty#*’
DISPLAY OF THE TEN COM&ANDMENTS
This unique d ecisio n prepares one fo r the more surprising fa c t
that North Dakota, where th e d ecisio n was rendered, i s the only sta te
which makes i t o b ligatory "upon a l l school.boards, tr u ste e s . . . to
d isp la y a placard containing the Ten Commandments o f the C hristian
r e lig io n in a conspicuous place in every sohool room, classroom, or
g
other place in said school where c la s s e s convene for in stru ctio n * ”
School board regu lation s for th© execution o f th is a ct are not
existen t*
SECTARIAN BOOKS
The question o f “sectarian books” in the schools has, however,
provoked more le g is la t io n , ju d ic ia l a ctio n and school board regula-
287^irw .^127
2#
&®rhardt
©t a l
North Dakota Sohool Laws ** 19SS
v Keid A pril 2, 1938
Sec* 879
p# 223
J
r tion*
Since th# Bible as a sectarian book has been treated in the
f i r s t sectio n of th e chapter it -will be em itted from the present d is ­
cussion*
Ihe S ta tu tes
Hie Arizona mandate makes i t ob ligatory for a l l
boards o f tr u s te e s to exclude from sch ools and sohool lib r a r ie s a l l books#
p u b lica tio n s,o r papers o f a sectarian# partisan# or denominational
character*u^
The C alifornia sta tu te not only p roh ib its the use or d is ­
trib u tio n o f such p u b lication s in schools or school lib r a r ie s* but
a lso fo rb id s the teaching of such doctrines therein*
Penalty for
school o f fic e r s perm itting such v io la tio n is included in th e section*
She use o f any textbook* chart# or other means o f in s tr u c tio n , " . . .
th at contains any matter r e fle c tin g upon o itis e n s o f th e United S ta tes
*
-
because o f th e ir r a c e / color or creed#” i s a ls o banned*
2
School boards of Idaho are empowered to exclude from th e schools
and th e school lib r a r ie s " a ll books# papers# and catechism s of a
sectarian rature", and required to prohibit sectarian or denominational
3
in stru ction *
Kentucky* s sta tu te prohibit® th e Huse or d istrib u tion * . ,
of any books or other p u b lication s o f a sectarian# in fid e l# or
Immoral character* or which r e f le c t s on any r e lig io u s denomination”*
or the teaching of such d o c tr in e s.4
Hew M e x i c o mandate s p e c ific a lly
.p r o h ib its "the teachers* use of any secta ria n or denominational
1*
School Laws of
A r iz o n a
1031 Art* IV Sec* 1011 Paragraph 4
p* 60
3.52
2* sohool Code - State of C alifornia - 1035 A rt. II Sec* 3j60p* 144
3*
32 - 2204
School Laws o f th e State of Idaho 1933 Part VII Sec* 7 p* 69
ip*17
Kentucky Common School Laws June 1934 Chap* II Sec*4363-11 j
fbooka or th© teaching of such doctrine© in the s c h o o ls .”'*' ”No seotari-^
an p u b lication devoted to th e d iscu ssion o f sectarian d iffe r e n c e s and
creeds sh a ll be admitted to th e lib ra ry ” , by order o f North Dakota
sta tu tes*
The Hi soonsin sta tu te require s the S tate Superintendent of
Public In stru ctio n to exclude a l l sectarian books and in stru ctio n from
3
the public schools*
Massachusetts sta tu te forb id s "the purchase or us© Of
4
school books favoring, the te n e ts o f any p articular r e lig io u s sect*"
Nevada1s mandate p ro h ib its the use or Introduction in to any sch ools” *** of
books* tracts* or papers o f a secta ria n or denominational character”* pro­
h ib it s the teaching of such d octrin es and provides a penalty for v io la 5
t lo n .
The uniform te x t book a c t of Texas contains the following* ” •*#,
provided th a t none of said textbooks sh a ll contain anything o f a partisan
6
or secta ria n character****”
Court D ecisions
On© o f the cages adjudicated in th e courts o f
C aliforn ia required the in terp reta tio n of t h is sta tu te*
An Injunction
m g sought* and denied in the lower court* a gain st the sch ool d i s t r i c t s
order to purchase twelve co p ies o f the King dames version of the B ible
for use in th e library*
The court maintaineds
"The provision s of the
Code must be construed with th e ir in te n t and purpose and the
1*
New Mexico Sohool Code - 1931 Sec* 178
pp* 78-7
2*
North Dakota General Sohool haws * 1936 Sec* 114 p# 62
3* haws o f Hieconsin R elating to Common Schools *►193$ Chap# 14
Sec* 14*67 p* 173
4#
Sec# 31
5*
General haws R elating t o Education - Mass# 1932 Chap* 71
p* 20
The School Code - State o f Nevada - 1936 Chap* 7 !II Sec* 106
p* 47
0*
l(2 8 4 3 )
The Public School haws o f Texas - 1936 Chap* X U Sec* 273
p, 12?
->
1mi sch ief at which they are a lined in view,
The King James version i s
not a sectarian, hook • • •• We do not assume to decide the comparative
m erits of the two versions#
We do, however* hold th at eith er or both
may be purchased fo r and placed in a public school library* without
v io la tio n o f the law .n^
New York*s sta tu te s are s ile n t on th is subject* but th e question
was ra ised with Joseph Lewis* president of 1h e Freethinkers* Society*
brought action Hto prevent the waste o f the oliyV s money in purchasing
cop ies of *B ible Headings1 fo r New York City*s public s c h o o ls ,n The
books had already been purchased, and no testim ony was adduced to show
th at the purchase of any more had been contracted for or anticipated#
The court ruledt "The Board of Education i s a corporation created by
the State L eg isla tu re fo r the purpose o f enforcing a sta te function;
and in so fa r as th e board a c ts under the Education Law in e sta b lish in g
school d i s t r i c t s , making ru les and regu lation s **#, the board and i t s
members act as o f f ic e r s of the s ta te and sectio n 61 (New York C ity
2
Charter) cannot be used to enjoin th e ir educational function#"
School Board R egulations
A t o ta l o f ten ..states p ro h ib it, by
le g is la t iv e a c t s , the use or presence of such books in the schools#
R egulations, banning books of t h is character, may be found in the
school board reg u la tio n s of th ree school d is t r ic t s , located in three
s ta te s whose s ta tu te s are s il e n t upon t h is subject* "**♦ and no book
or tr a c t designed to advocate the te n e ts of any p articular se c t or
1# 222 Fac# 001 Evans
Fresno County Jan# 4, 1924
City
L_
v
Selma Union Sigh School D is tr ic t
2# 258 N *Y• 117 Joseph Lewis v Board o f Education, New York
Jan# 5, 1932
193
■"party sh a ll be permitted in any of the schools,*’* i s the B r is to l,
^
Rhode Island rulet Butland*s (Vermont) reads, "No book or tr a c t design*
ed to advocate the te n e ts of m y r e lig io u s se c t or *** sh a ll be permitted
in any sohooli ##♦#"
Everett* s (Washington) regu lation fo llo w si
’* ...
no sectarian or denominational p u b lication of any kind whatever sh a ll
be used in the schools or made a part o f any lib rary*”
3
the amended
C alifornia a c t i s contained in the school board regu lation s of the
4
d i s t r i c t s o f Sacramento, San Mego and Oakland*
MILIfABY DRILL AND PHYSICAL TRAINING
Although the subject o f m ilita r y d r i l l in the schools might
seem to be more of a cu rricu lar or extra-cu rricu lar question, the
arguments u su a lly advanced against suoh p ra ctice include co n sci­
en tio u s scruples based upon r e lig io u s b e lie fs #
C a lifo rn ia 1s School
Code provides, "the male students of any high sch ool, having fo rty
or more such students, fourteen years o f age or over, m y be organ­
ise d in to a high sch ool cadet company ***, under guidance and con trol
of th e p rin cip al .*» sh a ll d r i l l in accordance with th e in fan try d r i l l
A rt,
1 * By-Laws of the School Committee - B r is to l Dec* 21, 1934
X Sec# 5 p# 16
2#
dune 1937
3#
Art# VI
Buies and Regulations of the Board of School Commissioners
Chap* 111 Sec* 10 p# 4
Buies end R egulations of the Everett Public School© 1936
S©o. 19 p# 17 N
4# Rules and Regulation© of Board of Education - Sacramento
dune 26, 1934 Chap* XV Sec. 6 p* 23
Ttie Adm inistrative Code of San Diego City School Diet* Oct* 19, 1936
Art* IX Sec. 29Q.
Rules and R egulations of the Board of Education - Oakland Aug. 1936
D ivision X Sec# 11
u
-I
tm
r eg u la tio n *
prescribed, by the Suited S ta tes Array. •
^ M ilita ry
""1
e x e r c ise s or d r i l l s may be included in th e school e x e r c ise s in the
sch ools o f M assachusetts b ut, M$o pupil sh a ll be required to take part
In any m ilita ry e x e r c ise i f h i s parent or guardian i s of any r e lig io u s
2
denomination co n scie n tio u sly opposed to bearing arras***«tt
the s ta te
Board o f Siucation o f Florida tti s #♦* authorised and directed to prescrib e a course in m ilita r y in stru ctio n and tra in in g to be used in the
high schools . . . hairing an enrollment of tw en ty-five or more male
. .* ■
p u p ils in and above the ninth grade*.* *tt
Oregon sta tu te makes i t
nlawful fo r any high school d i s t r i c t , . *.j to e s ta b lish ,and maintain as
a part of i t s course of in str u c tio n , m ilita r y t a c t ic s and tr a in in g ,
sub ject however, to such d ir e c tio n , supervisloaj and in sp ection as the
4
Governor of th e sta te of Oregon raay order and d ir e c t.* 1 Related
s ta tu te s require, ”that attendance a t such d r i l l s sh a ll be voluntary
upon th e ir part and with th e consent of th eir resp ectiv e parents or
0
gu ard ian s.*.•"
Washington*s school code omits the terra "m ilitary
tra in in g ” but provides th a t, ttA ll high schools of the s ta te may **#
emphasize the work o f p h ysical education
provided th at in dividu al
students may be excused from p a rticip a tio n on account of p h ysical d is ******
«**#» mm mmmmrnt « • « • « * * * « * m *
1*
pp. 460-2
School Code - S ta te of C alifornia 193? Chap* 1 Sec* 500-517
2* General laws r e la tin g to Education - M assachusetts 1932
Chap* 71 Sec*>3 p* 16
#
3* The School Laws o f Florida (Annotated) March 30, 1936
Sec* 807-10 pp. 107-6
4*
Oregon School Laws 1931 Chap# XXHX
5*
ib id .,
Sec* 35-3907
Sec* 35-3901
p«lS9
p, 180
J
196
r
"
1
a b ilit y or because of r e lig io u s b e lie f s * . .♦ ’* Wyoming’ s sta tu te s
authorise th e arrangement by two or more high sch ools in separate high
school d is tr ic ts * when approved by* and under the control of* the sta te
2
board o f education fo r the purpose o f providing m ilita ry tra in in g .
Six s ta te s in a ll* 'therefore* authorise such tr a in in g , only three of
which provide fo r the exculpation o f those who have r e lig io u s scrup les.
*
The Hew fork S tate mandate* ’’Nothing herein contained sh a ll be construed
to au thorise m ilita ry in str u ctio n or d r i l l in th e pu b lic schools during
3
school h ou rs,” might leave one in dOubt a s to i t s rea l meaning, had
not the Commissioner been c a lle d upon tw ice during the year 1931 to
in te r p r e t t h is s e c tio n .
The United Parents A ssociation of Greater Hew
fork appealed from an order of Hew York C ity’ s Board of Education,
r e la t iv e to the organisation of a m ilita ry train in g un it at the Jamaica
High School.
The Commissioner answered both appeals a t once,
by
inference a t le a s t , recognised th a t m ilita ry in stru ctio n or d r i l l may
be conducted in the public schools at other times than during school
hours.
I t is d iscretio n a ry with boards of education whether permis­
sion s h a ll be granted*
The m ilita r y d r i l l . . . was an ex tra-cu rricu lar
a c t iv it y and i t was l e f t s o le ly to the p u p ils and th e ir parents to
determine
The d ecisio n of the Board o f Sducation to permit th is
a c t iv it y m s w ithin i t s power and, in th e absence of evidence showing
1,
Code of Public In stru ction - Annotated 1923 Sec* 21 p. 37
2*
School laws o f Hie State of Wyoming 1933 Chap. IT Sec. 199
3.
Education law *■ June 1834
p. 53
i_
Art* 27
Sec, 713
p. 242
_I
m
(abuse o f d isc r e tio n , w i l l not be d
i
DAKGing -
s
t
u
r
b
e
d
*
"
"
I
vaccikatior
A frequent source o f controversy, variou sly described as an
abridgment o f conscience, an offen se against r e lig io u s scruples, and an
abandonment o f the sense of m orality, i s the sub ject of dancing* Sine©
most o f the oases referred to such ex e r c ise a fte r school hours, they
w i l l be treated in Chapter V under the heading o f recrea tio n a l a c t iv i ­
ty*
fhe sole exception I s one in which dancing was prescribed as
a part o f the course in physical education,
The p la in t if f a lleg ed that
h i s children were exp elled from school when they refused to take part
in th e ’’fo lk dancing, w a its, polka, tw o-step, and what i s equal to the
fox t r o t , ”
Such e x e r c is e , from p a rtic ip a tio n in which they were not
excused, was o ffe n siv e to t h e ir con scientiou s scruples and contrary
to t h e ir r e lig io u s b e lie f s and p rin cip les*
the school board seemed to
b a s e 'it s case on th e f a c t th at there was no r e lig io u s organisation
which proscribed th e a c ts complained o f;
but the court ruled th at the
school a u th o r itie s had no r ig h t to expel the p u p ils th a t, ’’persons
opposed to •the curriculum need not be a f f i lia t e d with any r e lig io u s
organisation *♦* but may question th e propriety of dancing as tending
2
toward the degradation of moral standards and a s d is t r a c t in g .”
Less p ertinent i s th e case argued in th e Texas cou rts, where the
p l a i n t i f f protested because h is children had been exp elled when they
refused (fo r r e lig io u s reasons) to comply with the regu lation , requir-
1* Department Reports of S tate o f Hew York - O ffic ia l Edition
Hay 23, 1931 V ol. 40 pp. 241-8
£,
2, 205 Pac* 48 Hardwick v
^Sacramento County, Oct* 28, 1921
Board of School Trustees,
-J
ring a l l p u p ils to be vaccinated*
The S tate Superintendent had pren
1
v io u sly upheld th e reasonable regu lation s of the school d is t r ic t #
The
court maintained that such an ordinance m s a necessary ex ercise of
p o lic e power*
In general, n ev erth eless. I t i s eviden t th a t the s ta tu te s ,
the co u rts, and the c h ie f s ta te school o f f ic e r s , "while upholding the
value of p hysical education and m ilita r y tra in in g , are most sin cere in
th e ir attem pts to assure every resid en t the freedom to p ra ctice h is
r e lig io n , and a t the same time to prevent th e sc h o o ls’ being used fo r
r e lig io u s purposes,
RELIGIOUS INSTRUCTION
The question of how, by what means, where, and under what
au sp ices children s h a ll get th a t r e lig io u s in stru ctio n which they
cannot receive in the public schools has been the cause o f much
controversy, p a r tic u la rly in recent years#
Reports o f a survey con­
ducted in d ica te th a t p u p ils are released from the public schools in
t
218 c i t i e s of t h ir t y - f iv e s ta te s d esp ite statu tory silen ce#
The S tatu tes
Oregon sta tu te provides th a t, "any ch ild attend­
ing in the public sch ool, on ap p lication of h is guardian or ei'ther o f
h is p arents, may be excused from such school fo r a period or periods
not exceeding one hundred and twenty minutes in any week to attend
3
week-day sch ools givin g in stru ctio n in r e l i g i o n .”
Ho school board
mm mm mmm mm mmm.mmm-mm
1# Notes on Rulings of S tate Department of Education - The
Handbook o f Texas School haw Nov# 1988 p* 819
A.
2# "Week-Day R elig io u s In stru ction ” United S ta tes O ffice o f
Education - 1933 pamphlet No# 38
$♦
L
Oregon School Laws 1981 Chap, XXX? Sec# 35-3501 p#141
-
'
U
^regulations attempt to expedite the execution of t h is sta tu te , but i t ^
1
has been upheld by an opinion of the attorney-general*
A section in
the a r t ic le on compulsory attendance in the South Dakota sta tu te s main­
tains*
nA c h ild may, on a p p lica tio n o f h is parent or guardian, be
exoused from school for one hour per week for the purpose of taking
and receiv in g r e lig io u s in stru ctio n conducted by some church or a sso cia ­
tio n of churches,.** said tim e #ien p ertaining to schools in the open
country may be used cum ulatively each separate month a s lo c a l circum­
stan ces may require*
The County Superintendent o f Schools « .. and the
Board o f Bduoation.*. sh a ll decide a t what hour p up ils may be thus
excused, and in no event sh a ll such in stru ctio n be given in whole or in
part a t public expense.11 A ll ap p lica tio n s for excuse must be in w r it­
in g .
I t i s a lso provided th a t, ”Any reputable c it iz e n who i s d is ­
s a t is f ie d w ith the d ecisio n •
may appeal the matter to the Superin-
tendent of Public In str u ctio n , tdiose d ecisio n s h a ll be f i n a l . ”
2
The
D is t r ic t of Aberdeen i s the only one o f those studied for t h is sta te ,
3
which regu lates t h is statute*
A sim ilar sectio n , found In th e chapter on compulsory education
o f the Minnesota s ta tu te s , provides, "* *. such c h ild may be excused
from attendance . . . i f i t i s the wish o f such parent,**, that he
attend fo r a perlpd or periods not exceeding to the aggregate three
hours in any week, a school for r e lig io u s in str u c tio n , conducted and
1*
Attorney General*s Opinions August 3, 1928
2* ‘The Public School haws o f South Dakota 1937 - T it le 7
Art* III Sec. 277 pp* 6 - 7
3*
Art* XI
Rules and R egulations o f th e Aberdeen Public Schools 1933
Sec. 1 Paragraph f and g p. 14
maintained, by some church or a sso c ia tio n of churches, or ***, such
~l
school to be conducted and maintained in a place other than a public
school b u ild in g , and in no even t, in whole or In p art, at public expense,
provided, . .
Only one d is t r ic t located therein has, however, taken
cognizance o f t h is enactment.
In M inneapolis, "Temporary absence sh a ll
be excused by th e.teach er when due to **,, compliance with esta b lish ed
■
ordinances for r e lig io u s in stru ctio n or observance*"
2
Included in the
compulsory education sta tu te s o f four other s ta te s are sectio n s excus­
ing children from attendance ‘"for observance of regular church ord i3
nances#"
"while atten d in g r e lig io u s serv ices or receivin g r e lig io u s
4
in str u c tio n s,"
"any c h ild over tw elve and under fourteen years o f
age during the hours w hile in attendance at confirm ation c la sse s,"
£
"any ch ild twelve to fourteen years of age w hile in attendance a t confim a t lo n c la s s e s conducted fo r a period o f not to exceed f iv e months
6
in e ith e r o f said years,"
J u d ic ia l A u th o rities
In t h i s connection Attorney General
H ilton rendered the follow in g opinion in 1923*
"Eeligious in stru ct
tlon for which a pupil may be excused from school under Chapter 78,
1931
1* Laws o f Minnesota R elating t o the Public School System Chap* XII See* 319 Paragraph 3 p* 83
2* Charter, Eules and Regulations of Minneapolis Public
Schools **1933 Chap* I I I Sec* F 4 p* 22
3,
The School Law o f West V irgin ia - 1935 Art*XVIII
Sec. 1 h
4*
School Laws o f Iowa - 1936 Chap* 228 Sec*4411 PP* 4 p .265
5*
The School Law o f I l l i n o i s - 1931 Sec* 274 Paragraph d’ p»14$
p* 67
6* State o f Michigan General School LawsRevision
Chap* XVII Sec* 428 Paragraph 2g p* 138
o f 1936
*Laws 1923 cannot be given in a school b uild in g wherein public school
i s maintained*
“l ,
The fa c t th at the particular room in which i t i s pro*
posed to g iv e the same Is not used for school purposes does not a lte r the
p roh ib ition «,,
“'The school board has au th ority . , . to make reasonable
1
ru le s and regu lation s as to tiire of day and length o f p e r io d s...***
This opinion was reversed in part eig h t years la te r by Attorney General
Benson*
”A school board may permit th e use o f the schoolhouse a fte r
the regular hours fo r a c la ss in r e lig io u s In stru ctio n , provided such
use w ill not in any way in te r fe r e with the use o f th e building for
school purposes.
Such a school would not c o n s titu te a school for
r e lig io u s in stru ctio n a s contemplated by s e c t io n * .., as children would
2
not need to be excused from school to attend i t . **
In addition to the l e g is la t iv e enactments of these seven s ta te s ,
two opinions were rendered in Pennsylvania, the e a r lie r denying the
au th ority of school d irecto rs to so excuse p u p ils.
The la te r opinion
denied the school au th orities* righ t t o coerce, demand, d ir e c t, or
supervise the attendance o f pu p ils so excused.
3
The Attorney General
o f I l l i n o i s rendered a considered opinion in the n egative, in answer
to th e S tate Superintendent*s recommendation fo r such a program*
In
New York many o f th ese con troversies have been appealed to the Com*
m issloner and some adjudicated in the courts*
A taxpayer of Mt.
Vernon sought to enjoin the Board of Education from allow ing th e pupils
to be excused for fo r ty - fiv e minutes each week fo r r e lig io u s in stru c-
1.
B iennial Report - Attorney General Bilton*Novemb©r 1923
2*
B iennial Report - Attorney General Benson~September 1931
3*
Attorney General Opinions <* 1924, 1927
201
r tio n and from having cards printed and d istrib u ted in school to be
checked a t the r e lig io u s cen ter.
The S tate Department a t Albany had
advised that such excusing was p erm issib le.
The prin tin g was done in
the school of In d u stria l Arts as an e x ercise for the boys#
The cards
were paid for by the Committee on Week Day R eligiou s Education* and
were printed during school hours on school property,
The court held,
"The Board o f E d u cation s printin g o f the cards fo r use by r e lig io u s
organ isation s i s a v io la tio n o f the C onstitution which p ro h ib its the
use of funds or property in aid of denomintional s c h o o ls ,..* The Board
of Education1© allow ing p u p ils t o be excused from school fo r periods
fo r the purpose . . . i s unlawful and w i l l be enjoined in view of the
1
Education Law
requiring attendance w ith exception."
I t was not
long before resid e n ts of d is t r ic t s in c lo se proximity to Ktl Vernon
took sim ilar action*
The twenty-fourth Annual Report of the Com­
missioner o f Education reviews the "Lewis v Commissioner of Education"
ca se, and In d icates how i t was taken to the Court of Appeals from the
unanimous affirmance o f ih© order by the ap p ellate d iv is io n .
The
Commissioner la te r issu ed a b u lle tin containing some ru les on th is
su b jec t, one o f which provides that a pupil may be excused one h a lf
day weekly for music lesso n s and a lso on days s e t apart for r e lig io u s
2
observance or in stru ction * , The court held* "P ractical adm inlstration
of th e public schools c a l l s for some e l a s t i c i t y in t h is regard and. v e sts
some d iscr e tio n in the school a u th o r itie s,
1928
L-
Neither the C onstitution
•*
128 Mi so. Ren. 692
211 N.Y.8* 822
2*
24th Annual Report - U n iversity of the State of New York
,
■
S tein
v
Brown e t a l June 1928
-I
rnor the law d iscrim in ates a g a in st r e lig io n .”
1 the
A ppellate D ivision "1
had Indicated the p l a i n t i f f ’ s lack of a clea r le g a l rig h t, the acqui­
escence of a l l concerned for a considerable period o f time (two years)
and concluded*
tflhe reasonableness of th e method, of th e school author**
i t i e s In a s s is t in g
i t s le g a lit y * ”
2
in r e lig io u s in stru ctio n for pupils i s the t e s t of
Such p r a ctices obtain in many o f ihe d i s t r i c t s in lew
York S ta te , w ithin the lim ita tio n of th e set of ru les formulated by the
Commissioner.
The Commissioner o f Education o f lew Jersey heard a case in which
a c it iz e n protested again st the a lleg ed co-operation o f the Board of
Education in week-day r e lig io u s in stru ctio n schools* esta b lish ed by
various Morristown churches under the Council o f B eligiou s Education.
A fter the school board had taken a ctio n , p up ils of the upper grades
were released fo r one hour on Wednesday afternoons upon t h e ir parent’ s
requests*
The Commissioner held? "I cannot agree that -there is not an
equal o b lig a tio n on the part o f the Board of Education a s upon the
c h ild ’ s parents to compel such c h ild ’ s presence in school every hour
of the se ssio n .
I t cannot be considered that the r e lig io u s in stru c­
tio n received by the in d iv id u a ls excused . . . i s eq uivalent In stru ction
w ithin the meaning o f the above law sin ce r e lig io u s teaching i s not
only not included . . . but a lso prohibited by the State In the public
sch o ols.
Therefore i t i s the opinion o f the Commissioner of Education
Joseph Lewis
v
People of the State of Mew York ex re!
Frank Craves May 10* 1927
People ex r e l Lewis v Graves, sta te
Commissioner of Education
Jan. 5, 1927
203
rth at i t 1$ a v io la tio n of the Compulsory School law w hile the school
sessio n , prescribed by th e Board co n tin u es,11* This d ecisio n was, how­
ever, reversed by the State Board of Education nine months la te r , w ith2
out w ritten opinion,
An ea rly d ecisio n which has never been reversed, i s th a t held
ky ■fck® VetMWfc court in 1876,
The p r ie s t o f the Homan Catholic church
in Brattleboro had asked the Prudential School Committee to excuse
ch ild ren from attending school on holy-daye*
Such request was d isr e -
gardedj and, when one hundred and f i f t y children went to Mass on the
f e a s t o f Corpus C h r isti, dune 4* 1874, and reported la te to sch ool,
they were expelled*
Ihe court concluded, "The Prudential Committee
may exclude the said children for the remainder of the term ,” sin ce
they may take reasonable measures for the regu lation of the school*
School Board R egulation
3
A few lo c a l school boards, in s ta te s
maintaining sta tu to ry silen ce on t h is su b ject, regulate t h is p ra ctice.
The Waterbury, Connecticut regu lation provides th a t, *Puptls of the
f o u r t h ,... grades, upon w r itte n request of th e ir parents sh a ll be
©xdused fo r r e lig io u s in stru ctio n one hour each week at a time to be
designated by the superintendent."4
Oswego's (Now York) more com­
p le te regulation 1st "Beginning October 7 , 1932, and u n til f urther
1* School Law d ecisio n s o f the Commissioner of Education Mar. 4,
1924 Joseph Randolph v Morristown Board of Education pp. 700-2
2*
I b i d . , . Dec* S, 1924
3*
48 ?t* 444 P e rriter e t a l v Tyler e t a l Feb.1876
4*
bary 1937
p. 702
Buies end R egulations o f the Board of Education
Chap* V Sec. 11 p. 28
Water­
J
rn o tice p rin cip a ls are authorised by the Board of Education to excuse
^
pu p ils in the t h ir d ,,.* grades a t three p.m. on Friday afternoons to go
to t h e ir resp ectiv e churches fo r r e lig io u s in stru ctio n on the follow ing
con d ition s*”
1
the con d ition s include w ritten consent o f a parent, year*
ly renewal of the p r iv ile g e , a check-up on th e attendance, (by means of
a l i s t of p u p ils in attendance furnished by the d irecto r of r e lig io u s
in stru ctio n ) and a c a n c ella tio n of the permit for fa ilu r e to attend*
The most in c lu siv e set of regulations on t h is sub ject is th at provided
in the Kansas C ity, IE ssourl r u le s •
’’Pupils may be excused to attend
r e lig io u s education, in str u ctio n to be given by some regularly con­
s tit u te d and organised church or r e lig io u s a sso c ia tio n under the follow ­
ing lim ita tio n s:
(a) That th e in stru ctio n be under th e d irectio n of th e
reg u la rly co n stitu ted o f f i c i a l s o f such organisations, (b) That s a tis ­
factory f a c i l i t i e s , such as meeting place, e t c ., be provided , *• and
that the matter and methods employed, be such a s are calcu lated to
promote ihe purpose fo r which excuse
i s granted, (e) That no pupils
be excused • • • without w r itten request of the parent . . . (d) That the
period o f excuse be the la s t period of the day, from 3sIS to four
o ’clock and . . . not more than two days per week on such days a s may
be mutually agreed upon*.,, (e) That attendance . . . be regularly
reported
to the school so that
( f ) To a s s i s t the board upon
the very b est means and p o lic ie s for the education of the children
under i t s charge, i t i s suggested th at the r e lig io u s bodies ♦.* pre­
sent to the board a t the c lo se of each term or year, a report givin g
1# Eules and R egulations of the Board o f Education for the
Government and Control of Public Schools 1933 - p* 43
205
r such fa c ts end opinions as in th eir judgment in d ica te th e d e s ir a b ili t y
"and the e ffe c tiv e n e s s o f t h is r e lig io u s in stru ctio n * ” (g) option al time
arrangement*^
M38CBU.AHB0PS STUDENT tJSES
A few mi soelianeous uses protested as '’"sectarian u se” of the
sch o o ls, include meetings of student groups known a s Monorah S o c ie t ie s ,
Newman Clubs, Y #M#C*A . groups, banded together because o f common
r e lig io u s a f filia tio n *
An injun ction against the use of New York City
public school b u ild in g s fo r such purposes was sought by the Free Thinkers *
A ssociation*
In reso lv in g the question the court reasoned*
rtThe
question here ••• i s not whether permission to u t i l i z e the school b uild­
ings should be given or w ithheld from th ose of ra cia l or r e lig io u s
a f f ilia t io n s *
The board has resolved these questions o f p o lic y * * .,”
"The m anifest v ic e of the p l a i n t i f f ’ s p o sitio n is that he has confused
the r a c ia l and r e lig io u s a f f i l i a t i o n s of the u se rs, w ith the purpose
fo r which th e b u ild in g s are used*
The r e s tr ic tio n r e la te s to the use.*#*
Freedom i s negated i f i t does not comprehend freedom fo r those who
b e lie v e as w e ll a s fo r those who d isb e lie v e **,. Bather than in im ical
to th e educational p o licy of the s ta te , or subversive o f i t s l e g i t i ­
mate use, i t i s a wholesome thing to have the school b u ild in g s, which
are maintained a t large expense by th e taxpayers, used for the pur2
poses and by th e groups whose exclusion is here sought*"
T his case
1* Buies and R egulations of the School D is tr ic t of Kansas
C ity March 25, 1956 Sec* 80 a-g pp. 75-4
2*
ggj
164 ^ewis
v Board o f Education New York City
. O ct. 50, 1935
J
"was heard in the A ppellate D ivision about f iv e months la te r and the
judgment affirmed#
~I
5he court ruled th a t, nA taxpayer’ s action may not
be used to l i t i g a t e the r ig h t o f the Boar
of Education to make ru les
in connection w ith the discharge of i t s function as a s ta te instrumenta l i t y . u^
Rochester *s regulat ions provide, “E xtra-curricular a c t iv i­
t i e s offered in co-operation with r e lig io u s and character building
groups may be conducted only upon the s p e c ific permission of th e Superin ten d en t. "2
*
'
Graduation e x e r c ise s are a r e la t iv e ly infrequent source o f con­
troversy*
May th ey be held in church?
May a m in ister, p r ie s t, or
other clergyman open the e x e r c ise s with prayer?
Such questions were
broached in the Wisconsin court in 1912| and When the school board
was enjoined from so doing, no graduation e x ercises were held#
in
1916 th e p la in t if f prayed for a mandamus to compel the d is t r ic t to d is ­
continue holding graduation e x e r c ise s in any of the churches, or per­
m ittin g any m in ister or person to o ffe r invocation or prayer at the
graduation exercises*
Upon appeal, the counsel on both sid es express­
ed a d esire to have the court take up the case on i t s m erits and d is ­
pose of i t , i f p o ssib le , when th e court indicated th a t mandamus i s not
granted to take e f f e c t prospectively*
fhe ruling o f the court follows?
“I t i s fortunate th at th e present hapless controversy is o f a genua
that seldom makes I t s appearance in t h is court*#«♦ P e titio n e r s are not
e n t it le d to r e l i e f but we think i t would be a w ise e x e r c ise of o f f i c i a l
.
24? App* Div. 106
286 H.Y .S . 176
Mar#61, 1936
# ,
bewie
V
* * ,
.
Board of Education
Hew York City
2* Rules and R egulations - Board of Education - Rochester
Sept. 1936 A rt. I l l p. 39
207
i l l sore tio n to discontinue such p ractices as are her© complained o f,
•when ob jection th ereto i s made by any su b sta n tia l number of school patrons#
*.* Regarding the prayers **# they are also sa id at n ation al and sta te
%
le g is la t u r e s but they are not u su ally sectarian in ch aracter*.#*"
Holyoke* M assachusetts has the only p ertinent school board regulation s!
’*At annual e x e rc ise s of the graduating c la ss of the High School, no
2
r e lig io u s e x e r c ise s conducted by a clergyman s h a ll be permitted*"
Many other somewhat p ertinent cases have reached the courts pro­
te stin g the sectarian nature of schools#
In an early d ecisio n rendered
in Chicago, i t appears that some g ir ls were committed by court order
to the "Chicago In d u stria l School fo r Girls"* where th eir tu itio n was
paid for by th e county*
la te r i t was a lleg ed that th is school r e a lly
had no b u ild in g, but was a mere tender to the House of Good Shepherd
and St* Joseph's Orphan Asylum#
R eligion was taught th erein as the
p ic tu r e s, c r u c ifix e s,, etc#* in the school room indicated*
lh© county
then withheld the tu itio n , in -which act th ey were su stain ed by the
6
court because o f the sectarian nature o f the school*
the w ill of S ila s
Hamilton bequeathed four thousand d o lla r s to be appropriated to the
erectio n o f a building su ita b le fo r a school and for a place of public
worship#
The court held?
"This school does not com© -within the con­
s titu tio n a l intendment of 'sch ool d i s t r i c t s ’ , *«• they were the public
'£*1*4* £»«*«■ * «*«»«■*
1*
«*. a w * # * * £*«*!>
156 H*W* 476
March 2 2, 1916
State ex r e ! Conway r D is tr ic t Board
2* Rules and Regulations of the School Committee - Holyoke 1927
Chap* XX Rule 10 p. 41
3« 125 111# 640 County of Cook v Chicago In d u stria l School
Sept. 28, 1888
208
1d i s t r i c t s well-known and e x is tin g throughout the s ta t e * . . , the in -
^
corporation of Hamilton’ s primary school was fo r the purpose of admini®1
tr a tio n of a p rivate ch arity*”
In a Kentucky case* the cause of controversy was the tr u s te e ’s
le a sin g , fo r a r e n ta l, of the grounds and school b u ild in gs o f th e United
Presbyterian Church*
The tr u ste e s had contracted with two of these
teachers and agreed to pay them*
The p la in t if f a lleg ed that he could
not send h is children there because he was opposed to the d octrines of
the Presbyterian Church, in which contention he was upheld by the courts*
"No odds how b e n e fic ia l to the graded school or to the children the
scheme may have been, i t cannot be doubted th a t i t was opposed to the
s p i r i t of the laws and i t s in v a lid ity i s not to be condoned because the
tr u stee s o f the graded school and a m ajority of the patrons of the school
2
approved i t * ” When a sectarian I n s titu tio n in th e sta te of Kentucky
suffered a d isa stro u s f i r e , one o f i t s teachers was employed by the grade
sch o o l, and two of i t s teach ers, who did not have the necessary valid
c e r t if ic a t e s , donated th e ir serv ices to the grade school free*
There­
upon the county superintendent withheld the money on the grounds th at i t
was a sectarian use of the grade school*
Xh t h is instance the court
held , ”The re m s not the s lig h t e s t evidence of any in ten tio n to pay one
cent of th e fund involved to Union C ollege or to any one connected
3
th erew ith .”
An in ju n ction t o restrain the town from aiding in the
1* 82 111*356 The People o f th e State of I l l i n o i s v Wm.
McAdams 1876
173 Ky* 708
W illiams e t a l v Board of Trustees of Stanton
191 S*?f.S07
School D is tr ic t Feb* 6, 1917
2
3#
130 Ky* 501
McDonald v Parker September 1908
209
^rebuilding of the ^Punchard Free School", which had been destroyed by ^
f i r e , m s sought on the grounds th a t i t was sec ta r ia n .
Said school had
been founded a fr e e school by the w i l l of Punchard, under the d irectio n
o f eig h t tr u s te e s o f d iffe r e n t church s o c ie t ie s , but with the under­
stand ing that no secta ria n in flu en ce was to be used in the school#
ihe
court h eld th a t the in h ab itants could not be taxed to rebu ild said
school*^
A w rit o f mandamus was issu ed by a North Dakota court compell­
ing a school d ire cto r to f o r f e it the key o f th e old sohoolhouee so that
i t s con ten ts could be moved to St# Joseph#s convent.
Separate rooms
had been leased th erein by the d i s t r i c t fo r a term o f years in accord­
ance w ith an e le c tio n held*
tr ic t
One d irecto r protested because the d is ­
proposed to conduct a public school in a C atholic in s t itu t io n
under the con trol and supervision o f the board o f d irectors#
The
higher court refused to consider th e various c o n s titu tio n a l questions
ra ised because the a c ts sought to be enforced were without statu tory
2
authority*
The grievance in a Hew York case was th e temporary use
of a C hristian Church chapel follow in g the destru ction o f th e high
school b u ild in g by f i r e .
The b a sis o f th e argument was the o f t
repeated p roh ib ition o f the Commissioner a g a in st compulsory attendance
a t 'r e lig io u s in stru ction *
th e appeal was dism issed, pending, the
con stru ction o f the new building#
The Commissioner held th at such
temporary u se , in an emergency, did not c o n stitu te an in terferen ee
1* 105 Mass* 94 William Jenkins e t a l V Inhabitants of
Dover Nov. 1869
2*
162 N.W. SCO Fred. Pronovoet e t a l v A lfred Brunette »
38 1*0 * 288
D irector SO * No* 40 March 3* 191?
210
“w ith tli© r e lig io u s r ig h ts o f the children so compelled to atten d ,
1
n
A fa th e r ’ s two children attended a South Dakota school u n til i t
“was discontinued in August 1926,
The county superintendent ordered the
school board t o pay a dims based on each ch ild * s a ctu a l attendance, and
”to a llo w these parents to send t h e ir ch ildren t o any school in the
s ta te they see f i t fo r the non© months o f t h is term .” The ch ild ren
m m sen t to St* liar tin* * Academy,
The chairman o f the school board
refused t o countersign a warrant fo r th e sum due* because he said i t
was in aid o f a secta ria n school*
The court in terpreted sectio n 7490
Of the sta tu te s to g iv e Mthe board power to d iscontin ue school provided
. . # ,” but ruled th a t the respondent was not e n t it le d to a peremptory
w rit of mandamus because th e school was not a sp e c ifie d public school*
A somewhat sim ila r ru lin g was given la t h is same s ta te
previous#
2
forty years
She Board of Education had designated H e r re U n iversity as
one o f the educational in s t itu t io n s in which a c la s s o f students
should be taught the methods and p ra ctice o f teaching in the common
schools*
They were so in stru cted )
but when the b i l l was presented*
i t was not paid on the grounds that P ierre was a secta ria n university*
organized to maintain and promulgate th e doctrines and b e li e f s of the
3
s e c t known a s Presbyterians and hence no aid could be given*
1* Department peports of State o f few York * O ff ic ia l
E dition July l8 f 1921 V ol. 26 pp* 217-21
2*
3#
236 f yr, 296
58 S *D. 361
Blebanje v Brew© A pril 21* 1931
2 S J) . 386 Synod of Dakota
v State Dec* 22* 1891
J
211
r
H
LECTURES OH ATHEISM
A lleged r e lig io n s or sectarian use of the public schools by
outside groups has also been the subject o f le g is la t iv e enactments,
school board reg u la tio n s, and court decision s*
Only one s ta te in the
Union has le g is la te d again st " lectu res on atheism"*
The 1935
Wi scon s in , enactment a p p lies to Milwaukee (in cou n ties having a popula­
tio n of f iv e hundred thousand or more); where "The school board upon
request o f the c it y council i s required to grant the use", for
certa in purposes, "except that such b u ild in gs idiall not be used f o r . . .
le c tu r e s on a th eism ...* "
1
CHURCH FESTIVALS - Y.M.C.A. MEETINGS
Two s ta te s have enactments which provide, "The Board of School
Trustees sh a ll allow on w ritten request the free use . . . fo r church
f e s t i v a l s . . . , Y.M.C A , meetings . . . p rovid ed ..*."
Hew Castle and
Wilmington sch ool boards have regu lation s designed to f a c i l i t a t e the
execution of th is sta tu te w ith a minor a lte r a tio n requiring the payment
of a charge s u f f ic ie n t t o cover expenses incurred*
3
The State Depart­
ment has ruled th a t the said a lte r a tio n i s not a v io la tio n .
“The
County Superintendents of Maryland . . . are hereby authorised to enlarge
the u sefu ln ess and in crease the e ffic ie n c y o f public school property
by allow ing th e use o f public schoolhouses fo r . . . church f e s t i v a l s , . . *
1. Laws o f Wisconsin r e la tin g to Common Schools 1936 Chap.40
Sec* 40.385 p. 501
2.
School Laws of Delaware 1929 A rt. 1
Sec* 17
p. 20
3. Handbook o f the William Penn High school, Hew C astle 1937 p .64
i-
J
i
~“ ]
’Y.M.C.A* m eetings,
Provided, however, that a l l such m eetings held
in public school b u ild in gs sh a ll a t a l l tim es be open to the p u b lic .1'
1
Four school d i s t r i c t s , located in s ta t e s whose s ta tu te s are s il e n t on
t h is use of the property, have regu lation s containing s p e c ific mention
o f t h is subject*
In providing for the ren ta l o f the junior high school
auditorium fo r sem i-educational programs,, th e B e lo it , Wisconsin ru les
sp e c ify "This c la s s ific a t io n would include the Y.W.G A ♦ and. Y*M.C JU"
2
Referring to th e use of school b u ild in gs by community groups, the
M issoula, Montana regulations in d ica te "Community groups are such as
#3
church groups*
The Bvaaasville* Indiana and Knoxville*
Tennessee regu lation s are concerned with p roh ib itin g the announcing,
p o stin g, or d istr ib u tin g n o tic e , of any non-school a o t iv it y to be held
in the school without the permission of the Board of Education or the
superintendent*
In the fonaer d is t r ic t ’’Y.M.C.A. and Y.W.C,«A« organ4
ic a tio n s may secure permission from the superintendent."
In the
la tt e r "This does not c o n c e r n * l o c a l church entertainm ents . . . or
Y.M.C.A. or Y .W .C .A ,,.*."8
PI TOTE WORSHIP AMD SUNDAY SCHOOLS
"The school-board
Qin Minnesota J may authorize the use of any
1*
Maryland School B u lletin - Sept. 1935 V ol. XVII No. 2 Chap.552
2*
Rental o f 1he Junior High School Audi to r i tan - B e lo it Nov. 20,
3*
R egulations of M issoula Public Schools 1934
1933
4* Handbook of the Public Schools
Sec* 141 p« 54
$ e c . 102
E vansville .Sept. 1935
5* By-Laws (Revised) K noxville Feb* B, 1957 A rt, 18 0
rsohoolhcrose in the d i s t r i c t fo r divine worship, Sunday schools, • *♦ as
w i l l not in te r fe r e with i t s use *.• and they may charge and c o lle c t for
the use o f the d i s t r i c t from the persons using such schoolhouse such
reasonable compensation as they may f ix # ”
th e sp ecia l r u le s, issued
by the Minneapolis d i s t r i c t , prohibit use of the b u ild in gs on Sundays,
•vshich would seem to be a v io la tio n of the sta tu te*
2
Duluth*s regulations
c lo s e s a l l school b u ild in gs on Sunday® and le g a l holiday®*
3
The statute*
a p p licab le to d is t r ic t s in I l l i n o i s where the population i s fewer than
one hundred thousand, provides* "the board o f school d irecto rs s h a ll be
clothed w ith the power ** • to grant the
temporary use o f them when
not occupied by sch ools, fo r r e lig io u s m eetings and Sunday schools*
4
• *•”
nThe board o f d irecto rs of a l l school corporations [ in Iow aj
may authorise the use o f any schoolhouse and i t s grounds *•• for the
purpose o f meetings of **# sim ila r rural secret orders and s o c ie t ie s * .* ,
5
provided th a t i t s h a ll not in terfere* ♦*’
In an old Missouri case a
r eso lu tio n was adopted authorizing th e school building to be used by
the defendant for teaching a Sunday school*
The Court held* wI t i s
doubtless not unusual for th ese common school b u ild in gs to be used for
such purposes a s th is one in Orrick*. . , and probably by common consent
they are used fo r r e lig io u s s e r v ic e s on Sunday, but i t i s not pretended
1*
Sec. 74
1933
Laws o f Minnesota r e la tin g to public Schools System 1931
Paragraph 3 p* 25
2* Minneapolis Public School Charter Rules and Regulations
Sec* o* 29 p, 61
3*. Pules and R egulations o f the Board of Education
July 28, 1936 Rule 9 p* 26
Duluth
4.
The School Law o f I ll i n o i s 1935 Sec* 115 Paragraph 10
pp. 55-6 ‘
i_
5, The School Law o f Iowa 1935 Chap. 226 Sec. 4371 p.253
"J
214
i~that any d ir e c t authority is given in the sohool law ju s tify in g or
“I
authorising the a ctio n of the board nor has i t any connection with the
X
object fo r which the house i s b u i l t . ”
RELIGIOUS MEETINGS
The le g is la t io n concerning " relig io u s meetings"* -which has been
enacted in nine states* would probably include Sunday Schools* 'Divine
Worship* church fe s t iv a ls * e t c .
In Idaho a rule o f the State Board
provides th a t r e lig io u s ser v ices sh a ll not begin u n til there has been
a lapse of fo r ty minutes a fte r th e adjournment o f school*
Is made o f such m eetings in th e statu tes*
In
centre sta tu te , the State Board of Education,
No mention
in terpretin g the community
a court of fin a l appeal
in t h is s ta te , held i t "to be the purpose of t h is law to provide a way
by which the schoolhouse might be used, and to place the r e sp o n sib ility
o f determining when and under what con d ition s i t might be used and
what i t s uses a s a community centre are upon the tr u ste e s of the d is ­
tr ic t..* * " ^
In a lengthy d iscu ssio n , th e board maintained* in part*
that a very proper use would be i t s use for r e lig io u s purposes by the
en tir e community or by some group thereof* provided the r e lig io u s
serv ice did not v io la te th e rule o f the State Board*
School boards and
tr u ste e s were advised th a t they should not o b ject when th e use o f the
b u ild in g s was sought by a d iffe r e n t se c t or denomination from th at to
which they belonged*
fh e superintendent o f Lewiston* nevertheless*
I*
6? Mo. SOI Dorton e t a l v Hearn «■ Orrick A pril 1878
2*
Mimeographed Copy o f S tate Board*sD ecision Nov. 20*1919
J
1 a d v ises that "no organ isation th at i s s t r ic t ly denominational s h a ll
1
have the use of 'the school property*"
i
fflie S ta tu tes
An I l l i n o i s sta tu te provides, as noted in the
2
previous se c tio n , fo r both Sunday Schools and r e lig io u s meetings*
Ihe c o n s titu tio n a lity of t h is sta tu te was estab lish ed by court d ecision
in 1879, when a taxpayer sought t o restra in th e d is t r ic t from allow**
ing the schoolhouse to be used by any so c ie ty or organization for the
purpose of a r e lig io u s meeting house#
th e court m aintained, "The
sta tu te i s not repugnant to any c o n stitu tio n a l p rovision , and the use
for temporary r e lig io u s meetings which do not in te r fe r e w ith the schools
w ill not be enjoined as ille g a l# "
t h is same sta tu te was la te r the
b a sis o f a d ecisio n reached where land had been conveyed in 1860 to
the " tru stees of Bethel Church" to be used fo r school purposes,
The
old and r e b u ilt b u ild in gs were used fo r both church and school pur­
poses u n til the school d irecto rs refused to permit a church organ­
iz a tio n to use the b u ild in g, because such meetings had resu lted in
damage to th e building and the furniture*
the court emphasized th a t
the s ta tu te gave the boards con trol and supervision, th a t said boards
might grant temporary use as they deemed proper, but held th a t with­
out such perm ission the church organization had no law ful rig h t to
enter#4
1.
l e t t e r from Glenn W* Todd, Superintendent March 9, 1988
2*
The School law of I ll i n o i s 1988 Sec* 115 Paragraph 10
pp#55-0
8#
4#
May 1909
93
111* 61 James H. Ifichols v The School D irectors 1879
149 111# App* 541 * School Directors v James E . T oll
r~A somewhat relevan t controversy was heard eighteen years la te r when
the Moline Board o f Education rented the auditorium a t a fe e of twentyf iv e d o lla r s to a church society*
The court held* among other th in gs,
^fhe use of school property fo r such purposes i s not out of harmony with
the o b jects fo r which sch ools are conducted, but stim u lates and fo s te r s
the in te r e s ts o f th e p u p ils and patrons and promotes the e ffic ie n c y o f
1
the public schools#”
The Indiana sta tu te provides, "When a schoolhouse i s unoccupied
by a common school o f the sta te #•* i f a m ajority o f the le g a l vo ters of
any school d i s t r i c t d esire the use of the sohoolhouse for other purposes
• ** the tr u ste e sh a ll . *« authorise the d irector *#• to permit the
people «»* t o use the house fo r any such purpose* givin g equal rig h ts
and p r iv ile g e s to a l l r e lig io u s denominations #** without any regard
whatever to the numerical strength of any r e lig io u s denomination .#*
of such d is t r ic t * ’*
This sta tu te was in terpreted to uphold the tru stee
in h is rig h t t o permit the common schoolhouse to be used by various
in h ab itan ts fo r r e lig io u s purposes and worship even though i t was
a gain st th e wishes o f some residents*
The cru cia l fa cto r was, nI t
has not been shown th a t a m ajority o f th e le g a l v o ters did not wish
t h is use*”
Thirty years la te r a tru stee permitted the use of the
school b u ilding for church purposes from the time the school term
adjourned in ih e spring u n til i t convened in the f a ll*
He, however,
1* 245 111* App# 469 - Mary Lincke v Moline Board o f Education
Sept* 1927
2* School laws o f the State o f Indiana - 1936 Chap* 8 Sec* 260
pp. 99-100
3*
48 Ind* 148 Hurd e t a l v Walter e t a l Nov. 1874
3it
'exp ressly forbade the use o f the building when school was in session* ”*
I t was used in th e evenings and on Sundays, u n til a perpetual injunction
again st the use o f the schoolhouse for r e lig io u s purposes was issued by
the t r i a l court*
The higher .court-1# d ec isio n m s based upon the mean­
ing of ’‘unoccupied fo r common school purposes” * Said the court* ”In a
le g a l and te ch n ic a l sense any public school building in which a public
school is being conducted is* in the language of the sta tu te , ‘occupied
for common school purposes* from the beginning to the end of th e teiro*
A schoolhouse is occupied for school purposes from the time a school
term opens u n til i t closes* including school days* Saturdays, Sundays,
and n ig h ts , in th e same sense th at a dwelling-house i s *occupied* by
a fam ily as a dom icile even though a l l members o f the fam ily are
temporarily absent over night or during the day or even for a longer
p eriod*” Regarding the vacation periods he maintained th at use a t
such times was leg itim a te ”i f the sta tu te was a valid one”, but “in
t h is connection without comment we d esir e to c a ll atten tion to **♦ of
the C on stitu tion
fHo man sh a ll be compelled to attend, e r e c t, or
1
support any place o f worship**”
The Indianapolis regulations prevent
the execution o f t h is s ta tu te for they m aintain, "The use of school
2
b u ild in g s by •** r e lig io u s gatherings sh a ll not be permitted*”
The Kan sag s ta tu te s authorise boards of education, ”to open any
and a l l o f th ese b u ild in gs for the us© o f r e lig io u s #*. s o c ie t ie s .#*
under such regu lation s a s the board may adopt, but i t s h a ll be unlawful
^
Baggerly e t a l v t e e , Trustee March SO, 1906
Zm Buies o f Board of School Commissioners, Indianapolis
Sept* 8 , 1931 Art* 19 Sec* 1 p* 20
J
rfer any school board to a c t a r b itr a r ily or p a r tia lly in the matter o f ~i
prescribing reg u la tio n s* . **wl
i s not binding}
Ibe famous v erd ict of J u stice Brewer
because i t ante-dated the aforesaid enactment*
"May
the m ajority of the taxpayers and e le c to r s in a school d i s t r i c t , use or
permit the us© o f a schoolhouse, b u ilt with funds raised by taxation
fo r other than school purposes?11 queried the Ju stice*
houses cannot be used for p rivate purposes*
**public school
th e argument i s a short
ohe* Taxation i s invoked to r a ise funds to erect b u ild in gs! but taxation
i s ille g itim a te t o provide fo r any p rivate purpose*
Taxation w il l not
be invoked to r a is e funds to b u ild a p lace fo r r e lig io u s **• meetings*"
Kentucky s ta tu te s provide?
2
"The Board o f education of any school
d i s t r i c t may permit the use o f the schoolhouse • • • w h ile schools are not
in s e ssio n , by any lawful public assembly o f *.« r e lig io u s , «»• bodies
3
under such ru les and regu lation s a s the board may deem pro per* * A
perm issive grant in the Hew Hampshire cod© empowers "the school d is t r ic t
or school board th ereo f to permit the use o f any schoolhouse in the
d i s t r i c t for *»* r e lig io u s and other meetings whenever such use w ill not
4
c o n f lic t with any regular school e x ercise* * * .w Ho p ertinent printed
reg u latio n s are a v a ila b le but Superintendent English o f Lebanon ad vises
that in compliance w ith the school law, use o f the property for r e lig io u s
1* School Laws of Kansas Revised 1938 Chap* XL Art* 111
Sec* 400 pp# 114**S
v
2* 18 Kan* 289 Spencer v Join t school D is tr ic t #8 July 1876
53
3* Kentucky Common school Laws - June 1934 Chap* VI Sec*4399-*
pp* 99* 100
4*
pp* 64-5
Laws of Hew Hampshire R elating t o Public Schools Sec* 22
219
rmeetings i s permitted in h i# d is tr ic t#
1
“I
Ohio sta tu te s require, "boards o f education to open the schoolhouges fo r r e lig io u s e x e r c i s e s . .. , when, in t h e ir judgment, i t w ill be
fo r the advantage of the children resid in g in any school d i s t r i c t , . . .
£
nothing to in te r fe r e with the public s c h o o ls .*. *“
fhe opinion of the
Attorney General wag sought when use of the school building had been so
granted.
He in d icated that such use was w ith in th e d iscre tio n of the
said board and hence could not be in terfered w ith except in a case of
3
gross abuse thereof#
Lack of con sisten cy in in terp reta tio n i s e v i­
denced by Cleveland*s prohibitory "The use of school f a c i l i t i e s s h a ll
4
not be granted for r e lig io u s meetings*"
Hamilton*# ru le i s almost
p ro h ib itiv e , "For a l l b e n e fits o f a s t r ic t ly m unicipal nature, or those
given by churches *•» th e charges s h a ll be ♦ . **“
In A llia n c e ,
“Charges covering lig h t , heat and ja n ito r serv ice s h a ll be made fo r
6
m eetings o f eitissen s, ‘Sunday S c h o o l s . “Teachers s h a ll not give
n o tio e o f . . . r e lig io u s m eetings in schools#***"
7
01s t r i c t boards in Oklahoma are “hereby authorised to open the
schoolhouse for the use of r e lig io u s . . . s o c ie t ie s belonging t o th eir
1#
L etter from Superintendent English ** Lebanon N *H . Harch 14,
2*
Ohio School
‘3*
Opinions o f Attorney General 1927
1936
Laws 1934
Chap* 18
Sec*7622p* 303
4* Adm inistrative Code o f the Board of Education of Cleveland
duly 1, 1925 Chap* X Sec# 350 p* 33
5*
R egulations
Governing
the Public
tfge of Auditoriums 1936
Sec * 4
6* Rules and R egulations o f Board of Education * A llian ce
June 5 , 1922 Sec* 301
p* 60
,
7*
I b id ., Sec. 183
p. 40
,
^ d istr ic ts for holding public meetings of such s o c ie tie s tinder such
1
reg u la tio n s a s the board may ad op t.”
In the absence of court d ec isio n s,
the Attorney General’ s opinions are* "A school board may open a school*
house fo r public m eetings but i s not compelled to do so ."
here i s no
au thorisation t o spend public funds to h ea t and lig h t a schoolhouse for
2
church."
A defense of i t s unmistakably contradictory regu lation s i s
contained in the Tulsa r u le .
"Ho r e lig io u s organisations of any kind or
character s h a ll be granted the use of th ese b u ild in g s, t h is being in con*
3
form ity with Section 5, A r tic le I I , of die Oklahoma H a te C onstitution."
Every Board of D irectors in the sta te of Washington, " . . . s h a ll
have the power and i t sh a ll be i t s duty t o authorise the school room to
be used for r e l i g i o u s , ..♦ meetings under such regu lation s a s the board
4
. . . may adopt."
The most lib e r a l of the school board ru les provides,
"Sunday schools or r e lig io u s serv ices may be held in sch ools which do not
require the ser v ic es of a
licen sed fireman, In outlying sectio n s -when
other quarters are not available*
necessary ja n ito r ia l s e r v ic e .
Sponsors . . . must fur nish fu e l and
Otherwise school bu ild in gs sh a ll only be
a v a ila b le for r e lig io u s ser v ices by organ isation s in emergencies caused
6
by f ir e or other damage to th e ir own b u ild in gs."
The ru les of Spokane,
1,
School Laws o f Oklahoma * 1938 A rt. I l l Sec* 66 p. 21
2 . Information contained In le t t e r received from L* Herman
Duncan, Executive Secretary, State Board of Education March 31, 1936
and August 3, 1937
3, Buies and R egulations Governing Bee o f S c h o o l B uildings for
other than Classroom A c tiv itie s Jan. 31, 1938 Rule 3
4 . Laws R elating to Public schools and School I n te r e s ts 1926*
31 Chap* 87 S©o. ID p. 6
8* Regulations Governing Use of School B uildings by Outside
Groups, Tacoma June 7, 1938 s e c . 12 p* 8
fTUynpl&j and S e a ttle are almost id e n tic a l .
,wNo bu ild in gs may be used “1
for sectarian purposes**1^ "Schools s h a ll not be used fo r m eetings of
a p o lit ic a l or sectarian nature*”2
"Questions o f **# may be regarded
as leg itim a te sub jects fo r consideration but ••• d iscu ssion of r e lig io u s
•
qu estion s are prohibited*”
Statutory S ilen ce
$
Court d ecisio n s in many other s ta te s have the
force of law because of statu tory silen ce*
the e le c t o r s of an Arkansas
d i s t r i c t had voted an appropriation fo r the purpose o f b uild in g a
schoolhouse*
I t was c le a r ly s e t fo rth in the sub scrip tion s circu la ted
that said house would be used fo r educational and r e lig io u s purposes*
in charge o f th e d irecto rs o f said d is tr ic t*
Evidence d isclo sed th a t i t
had been so used u n t il some o f th e seats and desks were injured* where­
upon th e d irecto rs decided to forb id such use*
The p la in t if f sought
and received a mandamus to compel the diredtors to f u l f i l l what he fe lt"
was a contract*
The superior court passed by every question except
th a t in which the s ta tu te s give the care and custody o f the property
4
to the d ire cto rs and require them to preserve the same from damage#
The school board ru les of the several d i s t r i c t s of th is s ta te are as
s ile n t a s th e statutes#
The dispute in Connecticut was p recip ita ted by a v o te , taken a t
a le g a l meeting of a school d is tr ic t* which allowed r e lig io u s meetings
■m * »
m m m e » * • « * m m # # * « * •*#** «*»
1* Buies and R egulations of the Spokane* Washington Public
Schools 1936 Sec* 30 p# 9
1937
2.
See. 141 c
3*
Buie a and Regulations fo r TJse o f School Buildings Olympia
Rules fo r Use o f School B uildings - S e a ttle dan* 3* 1935
4 * 69 2 3 : 202
B°y*
v M itoheU Karoh SO*
,
tu
rahd Sabbath sch ools t o ooimm© in th e d i s t r i c t school*
th e p l a i n t i f f n
contended such would be an i l l e g a l use and would oaus© considerable
•damage to th e property through wear and tear#
la this- he- was sustained
by the court although such had been the p ra ctice throughout th e s ta te
fo r fo r ty or
fifty
years* ^ S ilen ce i t q u ite general in th e ©choolboard
reg u la tio n s o f t h is sta te*
Danbury1s and Stamford1s prohibitory regu­
la tio n s provide# "Fermission s h a ll not be granted fo r the purpose o f
2
g ivin g sectarian teaching or in stru ctio n * ’1
Meriden has perm issive
regulations* providing* "Subject to special' d ir e c tio n s by th e board*
the p rin cip a l may at h is d isc r e tio n grant the use o f school b u ild in gs
.
to any organ isation whose purpose I s *•• r e lig io u s ♦*.
.'3
An appeal was taken whoithe t r i a l court in lorn d issolved an
injunction* forbidding the use o f pub Ho school houses fo r holding
r e lig io u s m eetings and Sunday schools*
th e court held*
"the elector©
have voted t o permit t h is use and since i t i s a reasonable and proper
use as evidenced by th e f a c t s agreed upon* th a t i t i s proper ought not
tfc
to be questioned in a C hristian state*"
^
Six year© la te r another con­
troversy arose when th e use o f th e school house for Sabbath sch ools
and r e lig io u s worship was refused*
I t was shown that the d ir e c to r 1©
re fu sa l was i l l e g a l because the © lectors, at a regular meeting
1*
27 Conn* 499 Ashbel S c o fie ld v Eight School D is tr ic t Oct* 1858
■2*" Regulations governing Community tJse o f High 'School A uditori­
um Dahburyp* 6
B uies ©nd Regulations o f Board of Education - Stamford 1931 Chap* XII
Sec* 8 p* 3$
1935
3* i u l e s and Regulation© o f the Board of Education - Meriden
Art. I f Sec* 55
p . 18
4*
35 Iowa 194 Townsend v Hagan e t a l Oct, 11* 1872
J
rfc&d adopted a reso lu tio n ordering the schools opened for "Sabbath
sch o o ls, r e lig io u s worship and lectu res on moral and s c ie n t if ic subjects
a t such times as would not in te r fe r e ..* ."
ing case and added:
the court c ite d the preoeed*
"We may further say th at the use for the purposes
named i s but temporary, o ccasion al, and lia b le a t any time to be denied
by the d is t r ic t e le c to r s and such occasional use does not convert the
schoolhouse in to a place o f worship w ithin the meaning of the Const!tu1
tio n ."
Despite these d e c isio n s, "The use of school b u ild in gs'b y . . .
r e lig io u s gatherings s h a ll not be permitted " in Council B lu ffs regula tio n s .
2
In Keokuk, "The School b u ildin gs sh a ll not be used . . . for
r e lig io u s or r a c ia l controversy, nor for c r itic ism o f any r e lig io u s
organisation or o f any r e lig io u s or r a c ia l group, nor . . . rented to any
organization known to be engaged in r e lig io u s or r a c ia l controversy,
3
or r e lig io u s or sectarian c r itic ism ."
A p e titio n for mandamus was sought to compel a Michigan school
board to allow the use o f the schoolhouse for r e lig io u s meetings#
The
c ir c u it court denied the w rit maintaining that the action o f the voters
4
denying such use was regular and authorized by law.
Pontiac does not
have printed r u le s , but does have " d e fin ite , well-understood p o lic ie s ,
among which are 'Churches may hold serv ices when th e ir own b u ild in gs
are undergoing repair or ren o v a tio n ...* Small denominations may use the
1.
SO Iowa 11 Davis v Boget e t a l December 6, 1878
2. D irectory of Council B lu ffs Public Schools, 1936-7
Paragraph 8
Sec. S
3. Rules and Regulations o f Independent School D is tr ic t of
Keokuk Sov* 14, 1927 Paragraph 74 p. 19
4.
L
118
Mich. 199 Eckhardt v Darby
Sept. 20, 1898
fb u ild in gs fo r Sunday .School purpose*
Detroit*® reg u la tio n s s ta t e , 1
A dm ission charges or c o lle c t io n s are prohibited unless . . . . Such per­
m ission w ill be granted only when the superintendent i s convinced that
the proceeds *•* w ill be used s o le ly for relig io u s. *** or other noncommercial, non-personal purposes***
2
Conversely, Grand Rapids* regula-
tio n s forbid ttth@ use o f b u ild in gs for sectarian or s e c r e t purposes*”
Some taxpayers in the sta te o f Nebraska prayed for a w r it to com­
p el the school board to keep the schoolhouse clo sed on Sunday, on the
grounds th a t r e lig io u s meetings held th erein made i t a place of worship*
the court ruled*
**Holding Sunday school or r e lig io u s meetings in a
country schoolhouse so in freq u en tly a s not to exceed f iv e tim es per
year, and which do not in te r fe r e w ith the sch o o l work* does not con­
s t it u t e the schoolhouse a place o f worship w ith in the meaning of the
■4
co n stitu tio n * w
^Religion i s a part of our c iv ilis a t io n *
I t is ,
th erefo re, Of n e c e s s ity a part of our education*”^
Evidence in d ic a tes that the subject o f holding r e lig io u s meet­
ings in public sch o o ls was one o f the major sources of controversy in
those e a r ly appeals heard before the New Yo*k S tate Superintendent*
Superintendent Van Dyck heard a request when a tru stee refused to open
the schoolhouse fo r r e lig io u s m eetings.
I.
The superintendent indicated
P o lic ie s on Community Dse of School Property - Pontiac
2m P o lic ie s on Community Use o f the School F a c ilit ie s D etroit 1935 Sec* SB
3*
p u les and R egulations o f Grand Rapids Schools 1934 sec* 4IB
p* 46
4#
D ille y
145 N*W* 999
March 13* 1914
s ta t e ex r e l John G ilb ert e t a l v Charles
225
rthat i t was im possible t o order him to do so even i f i t were the unani->
moos wish of the d i s t r i c t and suggested, ’’There i s no remedy but to
e le o t others in th e ir p la ces as f a s t as th e ir term o f service sh a ll
ex p ire.
Two years la te r Superintendent B ice was sim ila r ly urged to
order the schoolhouse opened for r e lig io u s meetings*
He a ls o d eclined '
saying, “No denomination has a rig h t to use the schoolhouse for re*
lig lo u s m eetings or other purposes#••• The Trustee who allow s such
p r iv ile g e s . . . does so without the sanction of any s ta tu te , law . • •."
2
Twenty-five years la te r Superintendent Draper rendered a d ecisio n in a
p ro test a g a in st the t r u s t e e d perm itting the use of a b uild ing fo r a
Sunday School.
“The q uestion . . . i s not new . . . j but When the question
i s raised we are a t once confronted w ith the laws which p rohibit the
u se, u n less a l l o f the tr u stees *** consent t h e r e to .”
8
Superintendent
Dix had p reviou sly h eld , "The tr u s te e s of each school d i s t r i c t . . . have
s t r i o t l y no more righ t to allow i t to be used fo r r e lig io u s m eetings,
than th e tr u ste es o f a r e lig io u s so ciety would have to allow the church
or the meeting house to be used fo r a s c h o o l.. . . I do not consider the
v o ice o f the m ajority o f the people of the d i s t r ic t as a proper c r ite r ­
ion for determining th e use
to which the sohoolhouse should be p u t..* .
4
The law has determined th is question*"
Superintendent Draper1s two
la te r d ecisio n s are a reversal of these view s.
»Vhen a tru stee permitted
the use o f a b u ild in g fo r holding r e lig io u s m eetings in the form of
1* ju d ic ia l D ecisions p. 625
(Anonymous) dune
2.
May 5, 1882
I b id ., p , 625 (Anonymous)
7,I860
3* I b id ., p . 878 Marquis Baker v Seymour Hall #3851
* 1887
4* I b id ., p. 877 (Anonymous) Feb. 19, 1838
L-
J
’Union s e r v ic e s , he (th e superintendent) sustained th e action of the
trustee*
n
He held that no damage had been done* no in terferen ce with i t s
use for school purposes had resulted* and an accommodation to a very
large proportion of the resid en ts of th e d i s t r i c t had been effected *
1
In another d ec isio n , because no harm had been done to the school*s or
the pupils* property, the tr u s te e ’ s a c tio n , in perm itting the use o f
the schoolhouse fo r r e lig io u s meetings on the Sabbath, was upheld d esp ite
objections*
Later a tr u ste e maintained th at he perm itted use o f the property
fo r r e lig io u s meetings and Sunday schools because " in stru ction was given
th erein in a branch of education or learning'*
superintendent Skinner
h eld , however, that the sta tu te quoted meant secular learning not
r e lig io u s in stru ction *
Superintendent Skinner, moreover, upheld the
tru stee who discontinued the use for r e lig io u s meeting© on Tuesday and
4
Friday evenings, although he continued to permit such us© on Sundays.
In another case th e Superintendent again d iffe r e n tia te d secular and
r e lig io u s in str u c tio n , ordered such use discontinued forever and warned,
"Disputes over holding r e lig io u s m eetings are detrim ental to the b est
6
educational in te r e s ts o f such d i s t r i c t s .*
In a somewhat Involved con-
No* 12
1* I b id ., p. 879 John C ostello v Trustees o f School D is tr ic t
#4021 Dec* 16, 1391
^ 2* I b id ., p. 880 dames Cogan e t a l v Pier Coolidge #8707
Aug* 27, .1888
3.
I b id ., p 880 John Sh ettler v P ren tiss Angel #4683 May 13,
4*
I b id ., p. 882 Enos Smith v Elihu D* Conklin, #4822 Deo* 4,
5*
I b i d ., pp. 883-6 Peter Martin v Erwin Weaver #4419 Jan* 16,
1898*
1896
1896
1troversy, s e t t le d in 1901, the Superintendent once more made th is
d is tin c tio n .*
^
Superintendent Crooker, however, dism issed an appeal
brought because the tr u ste e refused to discontinue the use of the school*
house fo r r e lig io u s meetings*
fhe Superintendent, having noted th at
Sunday school and d ivine preaching were held there in the absence of a
ohuroh, ruled, "Schoolhouses may be used »•* for r e lig io u s m eetings,
Sunday sch o o ls, le ctu res or any other moral, lite r a r y or u sefu l pur*
pose with the approbation o f m ajority of the d is t r ic t and the consent of
the tru stees*"
2
Superintendent Draper1 e 1906 d ecisio n was not so con­
cerned w ith th e r e lig io u s asp ects of the controversy*
the annual meet­
ing had voted two hundred d o lla rs to er e c t horse-sheds on a school
house site *
A resid en t claimed that t h is was i l l e g a l , for the rea l
purpose o f th ese sheds was the accommodation of th ose who drove to
attend the Sunday school held in th e building*
The superintendent fo r­
bad© the ere ctio n of the sheds, and ordered the use o f the space for
3
children*a recreation*
In 1931 the Commissioner was asked to remove
board members who c o n s is te n tly permitted ohuroh s o c ie t ie s and denomi­
n ation al organ!actions to use th e b u ild in g s, charge adm issions and us©
the proceeds fo r t h e ir own b en efit*
He d eclined to b e lie v e th at th eir
v io la tio n s were w ilfu l but ordered such use discontinued*
• 1* Ibid*,
June 8, 1901
Warning was
p* 899 M*L* Turss v Andrew McCutcheon #4941
2* Ib id #, p* 892 A lbert B. Brown v J *F. St i l s o n #4164
Feb* 16* 1893
#5221
3* Ibid#, p* 904 Joseph Burtie v School D is tr ic t Ho* 17
Got* 31, 1905
rserved 1feat future v io la tio n s would be considered w ilfu l# *
The
1
question a t Issu e in the most recent appeal was the rig h t of a r e lig io u s
organisation to use a school building for a fr e e lectu re on a nonr e lig io u s subject#
.Attorney-General Bennett1s opinion was that the
tr u stee s had such a right* but in the ex ercise o f th e ir d iscre tio n
“might regard refu sa l a s a safer course* in volvin g ho r isk of r e lig io u s
2
in str u c tio n in & school b u ild in g#”
The n o n -sile n t school board regu lation s o f t h is s ta te are practi­
c a lly agreed on proh ib itin g t h is use*
Buffalo*# "Permission to use a
school building sh a ll not be granted for p artisan or sectarian r e lig io u s
3
p u r p o s e s . a n d Hew fork*# #.♦ not when the meeting i s under the
4
ex c lu siv e con trol ♦
of a r e lig io u s s e c t ,”
in d ica te such Intent#
Oswego1s %#* £ gymnasiumsJ
cannot be granted to a society* a sso o ia 5
tio n , or organisation o f a r e lig io u s se c t or denomination*.**" and
Ithaca*s “fo r the use o f public school b uild in gs and grounds fo r
lectures..
other educational purposes not p o lit ic a l or r e lig io u s in
character #•* arrangements can be made*”
6
give ad d ition al evidence*
1* Department Reports of State of Hew York - O ffic ia l E dition
Dec# IS* 1931 V o l. 41 pp.423-S
V ol. 49
Z* Department Reports of S tate of New York - O ff ic ia l Edition
Oct# 4* 1934
3* By-Laws and Regulations of Board of Education, Buffalo
March 10* 1936 Sec# 3 Paragraph 3 p. 130
4# Rules and R egulations for Use o f School B uildings end
Property Hew York City # 1938
6* Rules and R egulations of Board of id ueation fo r Government
and Control o f Public Schools* Oswego 1933 p* 68
6#
Manual of Board o f Education 1934 Art* 8
Sec* I f p* 56
r"
Th© Board of School D irectors in a Pennsylvania d i s t r i c t
*~I
had fo r a long time permitted certa in o f lh e sohoolhouse 3 of the d i s t r ic t
to bo used for sectarian and r e lig io u s purposes and Sunday lyceums*
The
p ro test and ob jection o f a large number of taxpayers resu lted in an
in ju n ction by the d i s t r i c t court#
The court maintained, " It may be said
to be in the lin e of th eir use fo r educational purposes* but i t i s not
the use intended by the law* • . . The public school system i s for the
In stru ctio n of pupils who may attend the schools and not for the in**
stru ctio n or entertainm ent of other persons#"^
Several of th e d is t r i c t
reg u la tio n s g iv e t h is old d ecisio n th e force of law*
In Philadelphia
"School buildings# rooms,*** may be used fo r *** meetings of a nonsecta ria n n a t u r e L a n c a s t e r * s "School b u ild in gs or'p arts thereof may
not be used by any group or s o c ie ty for the dissem ination or discussion#
teaching or preaching of any doctrine o f a ***# denominational# rejr
lig io u s character♦«••"
In Reading "Ho permits s h a ll be granted for
4
r e lig io u s ♦*• meetings th a t are in any manner sectarian#***"
two
sectio n s o f the Harrisburg by-laws abe seemingly Incongruent*
Rule 61#
sectio n 8# provides# "Permission s h a ll not be granted for the use of
any school building #«• fo r any meeting on Sunday# u nless such meet­
ing i s o f a r e lig io u s nature*
Rule 61, se c tio n 36 p ro h ib its "the
3 ? \ * a$S3
Bender v School D irectors of School D is t r ic t
Manor Township May 17# 1897
2*
Rule XI
1927
By-Laws and Rules of the Board of Public Education 1936
Sec* 1 p* 57
3» Rules and Regulations of Board ©f School D irectors Sept* 27,
Art* 21 ;S©o* 3
4*
Sec. 1412
Rules and R egulations of School D is tr ic t of Reading
p* 51
r use o f any school buildings rooms •«» a t any time by any organization ~"l
fo r the promulgation o f p articular doctrines or b e l i e f s #"*
In the controversy argued in the South Carolina cou rts, land had
been conveyed *fer the purpose o f erectin g and maintaining a public
school for ’w hite children only” •
Action was brought to enjoin the
d i s t r i c t from perm itting the use o f the said premises and building there­
on fo r preaching and fo r d ivers other purposes#
*This action ," said the
Court, " is brought on th e theory that the word ‘only1 r e fe r s to i t s use
as a public school#
c h ild r e n .. . .
I t - d o e s not) the word *only* r e fe r s to ifdiite
Courts in a C hristian land cannot be supposed to tak e
ju d ic ia l n o tice th a t holding a preaching service in a sohoolhouse
when not required for a public school purpose i s a breach o f the con2
d itlo n s , i f there be a condition in th e deed#"
A disp ute was pre­
c ip ita te d in th e cou rts o f Tennessee when one tr u ste e , again st the
wishes o f th e school board, permitted a house ‘"erected fo r and used
as a schoolhouse and fo r r e lig io u s purposes on land conveyed to the
school d i s t r i c t , ” to be used fo r e le c tio n purposes#
The court averred,
"Though i t i s contrary to law and public p o lic y to in v e st public
school funds in property fo r j o in t purposes###, the use of a bu ilding
o f such character fo r school purposes when necessary i s not pro­
h ib ite d # ”
The use was, however, lim ited by the court to school and
■s
r e lig io u s services#
r nmmm * * m
1984
m
m
*
School board regu lation s in th ese two s ta t e s are
#*
I# Rules and Regulations o f Board o f School D irectors Dec# 28,
Rule 61 Sec# 8 and 36 p, 181
2#
116
*3 C
288
Harmon v Driggers e t a l Trustee S #D * Ho* 24
dune 30, 1921
3#
L_
41 ‘:S#W• 1066 Swadley v Haynes e t a l August 30, 1897
J
231
ras s ile n t on th is subject as the statu tes*
n
A d ecisio n w aarendefed by the Texas court when some taxpayers
complained th a t e le c t r ic lig h t s and water f a c i l i t i e s , paid for out of
school ta x es, were being used when Trustees allowed school b u ild in gs
to be used fo r secta ria n , p o lit ic a l and r e lig io u s purposes*
I t was in -
dieated th a t the board* s r ig h t of control can be challenged only by
bringing th e matter before the board, obtaining i t s ru lin g , and then
appealing t o the State Superintendent of Public In stru ctio n , who has
au thority to determine appeals*
I
A ll four of the school board regula­
t io n s , mentioning t h is phase o f the su b ject, are agreed upon barring
such m eetings from the schools*
In G alveston, ”The school b u ild in gs may
not be used «** fo r r e lig io u s **# m eetings*’1
Port Arthur*s ”tfse of
School property by r e lig io u s organ isation s for sectarian purposes ***
s h a ll be prohibited*”
In Wichita F a lls , %** no «•« programs o f a
secta ria n character s h a ll be permitted in any of the public schools
A
o f the c ity * ”
’’There sh a ll be no use of the public school auditorium s,
gymnasiums, or '•stadiums to promote one sid e or the other o f sharply
disputed r e lig io u s **• or other i s s u e s ,” in Beaumont*
The b a sis for a d ecisio n rendered in a Venn ont case was the
1*
275 S .W* 265 So* San Antonio Independent School D is t r ic t v
May 20, 1925
2*
Buies and R egulations of the Galveston Public Schools 1937
‘Sec* 6 p* 36
Martino
Art* 13
$• Buies Governing Use of School Property - Port Arthur
Oct* 28, 1928 Buie 4 p* X
4* P o lic ie s and B uies and Regulations o f Wichita F a lls
Public Schools Aug* 1081 p* 2
i_
1937
6* Buies and R egulations * Beaumont City Schools March 31,
Art* IV Seo . * P* IB
I,
—
uz
p r o f i t and ren ta l aspect o f the dispute rather than the question o f
r e lig io u s toe©tings*
Money m s voted a t an a lleg ed i l l e g a l meeting*
fo r a new schoolhouse containing a h a ll for to m m eetings, le a ctu res,
r e lig io u s meetings* etc*
sta tu to ry quotation*
The only relevan t p rin cip le was the court1®
"It i s w ithin the province of a school d is t r ic t
to provide such b u ild in gs and rooms Including a h a ll in connection
with a sohoolhouse* designed to accommodate the schools and inhabitants
o f the d i s t r i c t fo r the purpose o f examinations and ex h ib itio n s and
such other th in gs as are proper and customary in connection with d is t r i o t sch ools*”
th ere a re no regu lation s on t h is su b ject in the
school board r u le s o f the d i s t r i c t s studied*
NQN-SBCTAKiAK USES
A fu rth er p roscription again st r e lig io u s and/or sectarian use
of sohool property may be im plied from those s ta tu te s lafoloh, w hile pro­
viding for a v a r ie ty of u ses by the community, in t h e ir resp ectiv e
s ta t e s , including the d iscu ssio n of public q u estion s, lim it such
d iscu ssio n s to th ose by organisations o f a non**sectarian character*
Enactments o f t h i s type may be found in the sta tu tes of Delaware,
Maryland and Wisconsin* the Indiana sta tu te con tains a compulsory
mandate fo r us© "upon a p p lication of not le s s than one h a lf of the
voter®*** a® public meeting p laces for * ** non-* s e c ta r ia n ,. * * gatherB
lag® of c it iz e n s * .**"
lo r th Dakota mandate make® i t compulsory for
the building® to be opened, "for any public meeting which is to be
1*
43 Vt* 207 fhomas Oreenbanks v Henry Boutwell Nov* 1870
Zm School Law® o f Indiana 1935 Chap* 8 Sec* 262 p* 100
L-
J
zu
;la©hwse cta r ia n , and non-fraternal In ch a ra cter* ,* ,” when p etitio n ed by ^
tw en ty-five resid en t taxpayers*
1
The s p e c ific enactments of many s ta te s
are follow ed by general grants of d isc r e tio n , •which, in case of doubt,
would include t h is question e . g . , Hew Mexico*s "Provided th is sectio n
|~banning th e use o f sectarian booksj s h a ll not be construed to inter*
fe r e with the use o f school b u ild in gs for other purposes^ authorised by
the country board a fte r school
hours."
In the recen tly amended a ct o f
the M assachusetts le g is la tu r e , ap p licab le to a l l school d i s t r i c t s except
Boston, which "purposes promoting the usefu ln ess o f public school
property”, a sp e o ific clau se warns, *The a f f i l i a t i o n o f any such a sso cia ­
tio n with a r e lig io u s organisation s h a ll not d isq u a lify such a sso cia tio n
from being allowed such a use for such a purpose*”
g
A study o f the school board regu lation s o f the d i s t r i c t s within
th ese s ta te s rev ea ls that a l l of the d is t r ic t s of Delaware, Hew Mexico
and North Dakota lack regulations thereon.
The regulations o f the
d is t r i c t s of Arlington and Fitchburg, Massaohusetts provide, "Bermits
for the use o f school property sh a ll not be granted fo r . . . r e lig io u s ,
secta ria n *** purposes,v*s'
r e lig io u s purposes#
and "School b u ild ings m y not be used for
They may, however, be rented by r e lig io u s organ/
ie& tions for such purposes a s a re outlined in chapter 71 of the General
L a w s.”
~ B altim ore's (Maryland) regu lation s ty p ify s t r i c t con stru ction ,
1#
North Dakota General School laws - 1935 Sec# 555 p. 215
2$
Educational le g is la t io n o f 1933 * 1934 # 1935 Sec* 71
3 , Buies o f School Committee and Regulations for Public
Schools 1938 S©o» 10 Buie 2 p* 23
4*
p, 41
Buies of School Board - Fitchburg 1933 Chap, IX Bui© 10
234
r *Upon a p p lica tio n to the board o f school commissioners the assembly
^
room '*.* may bo used by resp onsible c iv ic ««• for d iscu ssion of questions
*#♦ but hot o f a r e lig io u s nature#*** I t i s understood th a t no
a sso cia tio n of a #,* r e lig io u s nature s h a ll be allowed to use any school
b u i l d i n g . T h e in ter p r eta tio n of the Wisconsin d is t r ic t s follow s*
"No request s h a ll be granted for the use of b u ild in gs fo r »• • r e lig io u s
2
m eetin g s,”
in Kenosha# "School b u ild in gs or grounds may be used fo r
%
n o n -p o litic a l and non*sectarian m eetings*♦«#'* in J a n esv ille* Salt
hake C ity’ s (Utah) regulation on t h is su b ject presents a new point of
view in ru lin g , "that a s a matter of general p o lic y the use of Board
of Education property for *•«, relig io u s* or a n ti-r e lig io u s purposes
be not permitted and that any req u ests which may be in terpreted as
coming under any o f th e se c la s s if ic a t io n s be denied*”
A sm all group o f s ta t e s , lacking both s p e c if ic and implied
sta tu to ry or ju d ic ia l a u th o rity , have d is t r i c t s located th erein in
which the subject o f secta rian purposes or m eetings i s part o f th e ir
regulations*
Such a re the d i s t r i c t s of bos Angeles and Oakland,
C a liforn ia where, "The follow in g are not allowed in connection w ith
c iv ic centre m eetings • «« sectarian or denominational r e lig io u s
4MI ■ * * * « » « » « * * « # « * « » «■***
•* « •* * '
1* Rules o f the Board Of school Commissioners Sept. 1, 1935
Art* XIII Sec* 4 p. 88
2# Board o f Education Rules and R egulations, Kenosha Jan* 22,
1924 Sec# P p. 42
5* Regulations Governing Wider Use o f the school Plant *
J a n e s v ille Rule 3
1937
4* Rules, R egulations and Adm inistrative P o lic ie s Aug* 10,
General Rules Sec* P p# 100
J
re x e r c is e s f
and wSohool b u ild in gs are not to be used for denomlna* ^
2
tio n a l or sectarian purpose a**’
"Sectarian or partisan questions sh a ll
be c a r e fu lly kept out o f the sch o o ls,”® by order o f Hie Augusta, Georgia
re g u la tio n s» th e Hew Orleans (Louisiana) ru le I s a lso a p roh ib ition ,
"#.* upon a p p lica tio n to the superintendent the assembly •
may be used
*•« for d iscu ssio n o f questions o f *** character but not of a partisan
4
or r e lig io u s n a tu r e# .a .”
Further p roh ib ition s are found in the Portland
and Westbrook, -Maine, ru les#
"fh© h a ll may be used by outside organ ltag
t io a s for le c tu r e s except those on r e lig io u s ««* subject®*tt
"Use for
m eetings, entertainm ents and occasions where admission f e e s are charged*
s h a ll not be permitted i f they are under the e x c lu siv e co n tro l, and said
proceeds to be applied fo r th e b e n e fit o f, a so c ie ty *** o f a r e lig io u s
6
se c t or denomination
A ll of the d ie t r io t s of Missouri are
agreed in p roh ib itin g t h is use*
M exico's "auditorium w ill be rented
to o u tsid ers* .* fo r community a ffa irs# non sectarian .** in character*"
*$© permit fo r such use sh a ll be granted f in St* Louis~j ..♦ nor for
1#
Chap* I
Regulations * Los Angeles C ity Board o f Education dune 1037
D ivision 21 Sec* 21*841 Paragraph 3
2* Buies and P eculations R elative to Wider Use o f School Plant
Oct* 26, 1026 paragraph B p* 6
5# Manual of General Inform ation, Public Schools of Augusta 1930
General Rule 7 p* 20
4# Rules and R egulations o f Orleans Parish School Board 1930
Sec* 63 p* 16
* 6* Regulations o f School Board for Renting High School
Auditoriums March 6, 1938
iums 1937
7*
Rules and R egulations for the use of High School Auditor­
Paragraph 3
Rules fo r Renting School B uildings ■**- Mexico 1937 Sec* 11 A
238
1
r r e lig io n s purposes#.**11
~I
la Kansas City* "No permits s h a ll be granted
fo r the use o f school b u ild in gs fo r r e lig io u s . . . or any other meeting
Involving con tro v ersia l m a tters.”
2
J o p lin ’ s rule i s defensive*
“In
order th at th e school plan t may serve a wider community use* the Board
o f Education hereby a u th orises . . . non*-see tar tan a s so c ia tio n s o f ad ults
3
to use th e auditoriums* gymnasiums***.M Montana1s d i s t r i c t s are
apparently more lib era l* but the ren ta l charges make such use almost
prohibitive*
"Sectarian**♦* organisations holding a meeting mainly for
adherents o f th a t group* w ith no adnlsalon charges* the rate w i l l be
.4
twenty d o lla r s per evening*”
In the absence o f printed regu lation s
the superintendent o f Elko (Nevada) advises* ”We permit r e lig io u s
organisations to use parts o f the b u ild in g during the summer for
.6
vacation schools for th e ir own people#”
Jersey City ru les prohibit
the board from p e m ittin g use “i f the purpose or r e su lt o f suoh use
i s . ••* seotarian in ch a ra c ter.”
The regu lation s o f the two Rhode
Island d i s t r i c t s have d iffe r e n t sub ject matter and present d iffe r e n t
view p o in ts.
Pawtucket’ s r u le s provide* “No school bu ilding sh a ll be
1# R egulations o f Department o f In stru ction - St# Louis Feb#
1934 Reg# 28 p.* 48
2# Rules and R egulations o f the School D is tr ic t March 26* 1830
Sec* 53f p* 38
3* Manual of Rules and Regulations of School D is tr ic t * Joplin
Aug# IS* 1933 Sec* 13 Paragraph 1 p# 49
4# R egulations governing the Renting o f Dawson County High
School Auditorium and gymnasium Sept# 16* 1934
0#
1937
L etter from C*M. Lane* Superintendent, Elko, Nevada
6# R egulations for Use o f Schools by C itizen s « Jersey City
Sec* 35 J
Hit
for
sectarian r elig io u s meetings*'
Cran stones by- laws
n
authorise# '^Auditoriums, unoccupied classrooms, and basement rooms,
not used as lab oratories or for other c la ss work, may be made availab le
fo r use during; the school year from September to dune in c lu siv e by any
2'
duly co n stitu ted church, sch ool, or ch aritab le organisation****rt
th e lib e r a l V irgin ia d i s t r i c t s r u le , "Ibe boardra rep resen tative Qin
CliatwGod_rmay permit the use o f the school houses of the county .*•
when preaching or Sunday school i s desired in a community without a
regular ohuroh house, and a sp ecia l appointment has been made* 'Re*
S '
v iv a ls sh a ll not be held in any schoolhouse*tt
’’School b u ild in gs
Q ih Richmond]
may be used on Sunday fo r regular church or Sunday
School purposes, or other r e lig io u s in stru ctio n or tra in in g upon pay**
ment o f regular fees**** The usual c o lle c tio n may be taken by ohuroh
o rg a n isa tio n s, but no admission charge or s a le of lite r a tu r e w i ll be
perm itted*”
The reg u la tio n s o f th e d i s t r ic t include s p e c ia l f e e s ,
when used fo r church s e r v ic e s , varied for use during w inter and
summer, morning and evening, etc*
F in a lly th ere are eig h t s ta te s in the Union, for which there i s
a b so lu tely nothing in a le g a l form to in d ica te a p o sitio n in t h i s
important matter*
«**» «. # « » « » * .
See* I
They are Alabama, Ari&ona, F lorid a, Mis s is s lp p l,
afr *•«*
1* Rules end Regulations o f the School Board 1930 Chap* X
p* 27
2*
By-Laws o f the School Committee 1938
3*
Dickenson County Schools
1 9 3 4 -5
Art# IX See* 3b p*17
Paragraph 5
p* 10
4* Rules and R egulations o f th e School Board - Richmond*
March 23, 1984 Art* XI •See* 13 p. 22
C olorado, Horth Carolina, West V irgin ia, and Wyoming*
The s ig n if i-
canoe o f ab solu te sile n c e on the part of tw enty-nine sta te school codes on
t h is very co n tro v ersia l aspect o f the use o f school property by ou tsid e
organ isation s i s somewhat debatable*
I t may be observed th a t o f th e eleven
s t a t e s , having s p e c ific le g is la t io n on t h is su b ject, a l l o f them permit
the schoolhouse to be so used, with minor reg u la tio n s to prevent any
hapless misunderstandings*
Yet in th e se seme nine s ta t e s , th e school
board regu lation s are e ith e r s ile n t , lukewarm, or contrary to th e s e n ti­
ment expressed in the statute#
Where court d ecisio n s have been rendered
in th ese s ta t e s there has been a tendency to emphasise the lack of
repugnance o f the various sta te c o n stitu tio n s toward C h ristianity*
SUMMARY
R elig io n i s a part o f c iv ilis a t io n ! education cannot be com­
p le te without i t , y et controversy on any use o f school property for
r e lig io u s or sectarian purposes i s always marked by a b itte r n e s s of
sp ir it*
Such co n tro v ersies, unfortunately, are not few in number*
1*
Many of the co n tro v ersies, appealed to th e courts and t o
the c h ie f s ta t e school o f f ic e r s , a lle g in g ^sectarian use** o f the schools
are not of recent o r ig in , but t h e ir d e c isio n s have had the fo rce o f
unchanging law,
Zm There i s m anifest a determined opposition again st perm itt­
ing any s o c ie ty , organisation or purpose even rem otely connected with
r e lig io n to r eceiv e any in c id en ta l b e n e fit from the schools*
3U
Perm issive le g is la t io n fo r the use o f school property
fo r r e lig io u s meetings i s contained in the sta tu te s of eleven s t a t e s ,
230
^nine o f which have sca ttered populations.
4.
'
The d iscretion ary power granted school boards may make such
use im possible except in small ou tlyin g sectio n s lacking church buildings*
5.
Where the sta tu te s are s ile n t on thi® su b ject, many o f the
school boards have ru lin g s designed to prevent such use of the sch ools.
6.
The weight of au thority in d ica tes that B ible reading with­
out comment is permitted in the public schools} twelve s ta te s have
express mandates requiring such reading.
7.
Lectures on Atheism and a n ti-r e lig io u s meetings are each
proscribed in only one s ta t e .
8.
State recognition o f the r ig h t of children to be excused
to receiv e r e lig io u s in stru ctio n i s now made in seven s ta te s and many
school d is t r ic t s ; the use o f the school rooms for such in stru ctio n has
been sanctioned in one s ta te .
9.
Wearing a r e lig io u s garb while teaching i s sanctioned by
court d ecision in only one s ta t e , but forbidden by sta tu te and court
d ecision in o th ers.
10.
The presence o f sectarian books in the schools i s fo r ­
bidden by s ta tu te .
11.
One s ta te requires the d isp lay o f the Ten Commandments in
every classroom*
12.
M ilitary tra in in g i s authorized by sta tu te in s ix s ta t e s ,
three of which provide for the absolution of those w ith r e lig io u s
scruples*
IS*
The rig h t o f students to hold meetings o f lawman Clubs,
Menorah S o c ie t ie s , etc* in school b uild ings has a le g a l b a sis in one
s ta t e .
L
J
UQ
j
14*
Rental of rooms in chap els, church school b u ild in g s, e tc * , ^
fo r in stru ctio n purpose i s prohibited except in eases o f emergency*
16*
Graduation e x e r c is e s may not be opened with prayer in one
school d is tr ic t*
16.
Humorous appeals were brought by the small communities to
Hew York State* a f i r s t school o ffic e r s*
17.
th ere i s more unanimity among school d is t r ic t s on t h is
phase of use than on commercial u se.
18*
Local reg u la tio n s are designed to encourage meetings in the
schools o f non#sectarian groups o f c it iz e n s .
19,
In the minds o f makers o f school board reg u la tio n s,
r e lig io n seems to be d e f in it e ly associated with controversy, c r itic ism
and exclu siven ess*
J
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