
    Moore v. Board of Education of Southwest Local School District.
    [Cite as Moore v. Board of Education, 4 Ohio Misc. 257.]
    
      (No. 15588.
    Decided October 18, 1965).
    Declaratory Judgment: Common Pleas Court of Mercer County.
    
      Mr. Mark McChesney and Mr. Perry G. Wise, for plaintiff.
    
      Messrs. Hinders & Klosterman, Messrs. Porter, Stanley, Treffinger S Platt, Mr. Edmund D. Doyle and Mr. Samuel H. Porter, for defendant.
   Cramer, J.

The plaintiff has brought this action as a taxpayer and parent of children who attend and are students of the Southwest Local School District of Mercer County, Ohio —hereinafter referred to as District — and alleges that the facts stated in the amended petition are of “common or general interest to other residents of the District, that the rights of the said other residents are identical to the interests of the plaintiff and that the said other residents are too numerous to bring separate actions concerning the facts stated therein. ’ ’

The defendant will hereinafter be referred to as the Board.

The plaintiff seeks a declaratory judgment declaring: That the defendant’s principal placement plan in the elementary schools and resulting segregation of pupils upon religious creed violates the Fourteenth Amendment of the United States Constitution; that the Board’s method of operating West, St. Peters and Sharpsburg elementary schools constitutes the operation of parochial, religious sectarian schools with public school funds and violates Article VI, Section 2 and Article I, Section 7 of the Ohio Constitution and violates the First Amendment of the United States Constitution, as made applicable to the states by the Fourteenth Amendment of the United State Constitution; that the operation of said religious sectarian schools by the Board constitutes the obtaining of exclusive control of a part of the school funds of Ohio by a religious sect and violates Article VI, Section 2 of the Ohio Constitution.

Plaintiff also seeks injunctive relief compelling the defendant to cease segregating pupils in the elementary schools based upon their religious creed; compelling the Board to conduct the West, St. Peters and Sharpsburg elementary schools as public schools and not as religious sectarian schools; compelling the Board to cease using public schools’ funds for the operation of religious sectarian schools and to cease using public school funds for transportation of children to such religious sectarian schools.

He further seeks specifically to have the defendant enjoined from: Allowing public school teachers to take public school students to Mass; allowing public school teachers to participate in the giving of sectarian religious instruction to public school students; allowing public school children to attend Mass and sectarian religious instruction while under the jurisdiction and supervision of the public schools; allowing public school students to receive religious instructions in the same buildings in which they attend public school; allowing public school teachers to teach while wearing the garb of a religious order which garb has distinctive religious significance; allowing the operation of the various schools on different hourly schedules and on different holiday schedules so as to conform to a particular religious sect’s beliefs and the operation of public schools in such physical surroundings that it appears the public schools are part of the Roman Catholic church grounds.

The facts, presented and developed through the testimony of many witnesses (in excess of fifty), a number of exhibits and through admissions made by the parties, through the pleadings and otherwise are substantially as follows:

The present district was created by the Mercer County Board of Education on January 7, 1958, through a consolidation of the Port Recovery, Sharpsburg, St. Joseph and St. Peters local schools.

All the children who attended West School and St. Peters School and Sharpsburg are of the Catholic faith and many, if not all, of the pupils attending Bast School (the fourth school in the district) are non-Catholic.

The West School is located in the village of Port Recovery, Ohio, and the board has constructed a building upon the ground owned by the congregation of the Mary Help of Christians Catholic Church and upon the same land there is another school building owned by the church. There is also a cafeteria building connected to the church and school building. Situated close by the cafeteria building is the Mary Help of Christians Catholic Church and the home of the pastor of the church. At the rear of the church there is a convent housing the teachers who teach in the District. The building constructed by the Board is on ground leased by the church for 99 years at a rental of $99.00. This building houses grades six, seven and eight and the Board rents from the church or has been granted a license to use certain rooms on an hourly basis during certain hours on school days. The Board, also under that rental or licensing agreement, uses the cafeteria on an hourly basis during certain hours.

School commences at 8:30 a. m. and continues until 11 a. m. at which time all the children go to the church, either to attend mass or to receive religious instruction in the Catholic faith. This period lasts until twelve noon. In the main, the religious instruction is given by the classroom teachers in the adjacent church building, in the cafeteria building and in some of the classrooms in the building used as a public school. This religious instruction is not given in any building or rooms either owned by or under a rental or licensing agreement with the Board.

The St. Peters school consists of two school buildings located in the country at a crossroads. The two school buildings are on one side of the road and on the other side are a church, home of the priest and church burial grounds. The corner school building is owned by the congregation of the St. Peters church and is rented or licensed by the Board on an hourly basis at specific hours.

The other building is owned by the Board and is situated on land owned by the church and leased to the Board for 99 years at a rental of $99.00. Here, religious instruction is given in the church during the same hours and with the same procedure which is followed in the West School.

The Sharpsburg School is in the Village of Sharpsburg, Ohio. The building is owned by the church and leased to the Board for 99 years at a rental of $99.00. Upon the same ground occupied by the school there also stands the St. Paul Roman Catholic Church and the home of the priest. The church cemetery is on the plot of ground. Religious instruction is given in the church and the same procedure in respect thereto is followed and at the same hours as at West. No sisters teach at Sharpsburg.

There are five teachers of the total of the twenty-five in these three schools who are non-Catholic (two at St. Peters and three at Sharpsburg), six of the elementary school teachers in the District are members of a religious order within the Roman Catholic Church, Sisters of the Precious Blood. As members of said Order they are subject to certain religious vows, namely, poverty, chastity and obedience.

The public school teachers in the three schools here involved receive no increased pay from the Board for giving religious instruction nor does the Board otherwise make any expenditure directly for or in connection with any instruction. Not all the teachers at these three schools participate in the giving of religious instruction during the time devoted thereto and those who do not participate receive no reduction in pay from the Board.

The County Board of Education approved the books used in the schools and all the teachers, including the Sisters, are fully qualified and accredited as teachers by the Department of Education of the State of Ohio. Members of the Order are recommended for teaching positions by the Superior of the Order.

The approximate number of pupils in the District is 938, of this number 744 or 79 per cent attend Sharpsburg, St. Peters and West elementary schools; 21 per cent attend East School. The percentage of children attending Sharpsburg, St. Peters and West schools represents approximately the percentage of inhabitants of the District who are of the Roman Catholic faith.

Bus transportation is provided by the Board of Education for students attending all four schools. Two routes are utilized in transporting the children to the schools. All elementary students who attend the East School are on the second route. Children on the first route go to the West School.

Some children whose parents are in the St. Paul parish but who reside outside the District attend Sharpsburg School and part of their tuition is paid to the Board by the partish of St. Paul Church.

The defendant, in its second defense to this action, raises the issue as to plaintiff’s capacity to maintain this suit. It asserts that plaintiff has not made a written request to the County Prosecutor to bring the action and been refused by him so to do before plaintiff instituted this suit.

It is claimed that Section 309.13, Revised Code, provides the mechanics for the institution of a taxpayer’s suit and that plaintiff did not comply with the provisions thereof.

The pertinent part of Section 309.12, Revised Code, provides :

“Upon being satisfied that funds of the county, or public moneys in the hands of the county treasurer or belonging to the county, are about to be or have been misapplied, or that any such public moneys have been illegally drawn or withheld from the county treasury, or that a contract, in contravention of law, has been executed or is about to be entered into, * * * the prosecuting attorney may, by civil action in the name of the state, apply to a court of competent jurisdiction, to restrain such contemplated misapplication of funds, or the completion of such illegal contract, or to recover, for the use of the county, all pub-lie moneys so misapplied or illegally drawn or withheld from the county treasury * * V’

The defendant argues that this section provides for the protection of public funds and protects two different types of funds:

(1) Public monies belonging to the county; and

(2) Public monies in the hands of the county treasurer for the use of other political subdivisions.

It is urged that Section 309.12, Revised Code, provides for two different types of action:

(1) An action to restrain the “contemplated misapplication of funds;” and

(2) An action to recover, for the use of the county, moneys that have been misapplied or illegally drawn from the county treasury.

The defendant urges that tax moneys collected by the Mercer County Treasurer for use of the Board “are public moneys in the hands of the county treasurer,” within the meaning of Section 309.12, Revised Code; that, therefore, plaintiff had the mandatory duty to make a written demand upon the County Prosecutor before the suit; and the admitted failure to make such demand requires that the action be dismissed.

The plaintiff argues that prior to the time payment is made by the County Treasurer to the Board the funds are public funds in the hands of the treasurer but when the payment is made the money ceases to have any connection with county government. It is pointed out that the money is placed in a separate account in the name of a school district where it is co-mingled with funds received from the state of Ohio and the Federal Government and it is disbursed by warrant of the clerk-treasurer of the District upon the order of the school board. It is then argued that once the payment is made to the school district, the money ceases to be public funds in the hands of the county treasurer and that this section of the code does not apply to this case since the claimed illegality in expenditures occurs after the money ceases to be public funds in the hands of the treasurer.

We have considered the authorities cited by both parties and have concluded that Section 309.12, Revised Code, does not provide authority for the prosecuting attorney to bring an action to recover funds allegedly misapplied and which belong to an agency such as the Board of Education. We believe that the authorities submitted to us support this conclusion. In this connection, it is interesting to note the opinion of the Ohio Attorney General reported in 1962 O. A. G. 158, No. 2850.

It is further urged by the defendant that the plaintiff has failed to sustain the burden which the law casts upon him of showing that either he or some other taxpayer of the district has sustained pecuniary injuries resulting from “the activities about which he complains.” The plaintiff’s position is that he is not required to establish such pecuniary injury.

Assuming, for the sake of argument, that pecuniary injury need be shown, it is our view that such injury is implicit in the claims made by plaintiff against the board. As a taxpayer, plaintiff sustains pecuniary injury in the board’s expenditure of his tax money if, as he claims, the board is using the same to provide and furnish the complained of sectarian education.

However, we view the issues raised both by the pleadings and the evidence as not being limited to whether plaintiff has or has not sustained pecuniary injury. A more vital issue, it seems to us, is raised, that is: Has the board’s operation of its schools impaired plaintiff’s own constitutional rights as a parent and citizen as well as a taxpayer? It is true that constitutional questions cannot be raised simply because a party wishes to vindicate a constitutional principle. However, here plaintiff claims that his rights and those of his children under the First Amendment of the Constitution of the United States have been infringed. In effect, he claims that the complained of practices of the board in relation to the operation of the schools has a particularly adverse effect upon him and his children.

It is our opinion that plaintiff has shown that he has the requisite standing to bring this action so as to preclude any successful attack made upon his lack of capacity to sue and maintain this action.

The evidence which was here introduced showing the relationship between the State Board of Education and the defendant board has not caused us to change our position heretofore taken and announced (on the ruling on defendant’s motion for summary judgment) on defendant’s claim that plaintiff was required to submit his grievances and complaints respecting defendant’s operation of the schools to the appropriate administrative agency before resorting to this action.

We are still of the opinion that the primary administrative jurisdictional doctrine has no application here and, therefore, plaintiff’s failure to resort thereto does not defeat the instant suit.

We wish merely to observe that in view of the statutory relationship which defendant points out exists between the defendant and the State Board of Education and the extent of supervision and control over the defendant board by the state board which the statutes apparently provide, knowledge of defendant’s operation of its schools certainly must have come to the state and county boards’ attention. Perhaps even judicial notice might be taken that such knowledge was theirs.

Isn’t it, therefore, reasonable to assume that these boards either approved of such operations or if they disapproved thereof, felt that legally they were helpless to remedy the situation? In either case, the futility of plaintiff resorting to such “administrative agencies” becomes apparent. The law does not require the performance of a futile act.

We, therefore, conclude that defendant’s second and third defenses are not well made and are unavailable to it as defenses.

The basis for attack against the system the defendant employs in operating its schools are the following three grounds which are set forth in detail in three causes of action:

(1) The defendant has adopted a system of pupil placement that results in segregation of pupils based upon their religious creed;

(2) The defendant is using public funds to operate within the public school system parochial schools wherein a sectarian religion is taught;

(3) That a religious sect, to wit, the Eoman Catholic Church, has obtained control of a part of the school funds of the state of Ohio.

If, of course, the plaintiff has established the existence of one or more of these claims the relief he seeks, in whole or in part, should be granted; for such acts would violate Article I, Section 7 of the Ohio Constitution and the First Amendment to the Constitution of the United States, as made applicable to the states by the Fourteenth Amendment.

Article I, Section 7 of the Ohio Constitution provides:

“All men have a natural and indefeasible right to worship Almighty Grod according to the dictates of their own conscience. No person shall be compelled to attend, erect, or support any place of worship, or maintain any form of worship, against his consent; and no preference shall be given, by law, to any religious society; nor shall any interference with the rights of conscience be permitted. * * *”

The applicable portion of the First Amendment is as follows :

“Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof.”

A religious freedom preserved by the First Amendment has a dual connotation. It has been said:

“It ‘forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship,’ and conversely it ‘ safeguards the free exercise of the chosen form of religion. ’ ’ ’

Or in the words of the Supreme Court of the United States (Everson v. Board of Education, 330 U. S. at 15):

“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Grovernment can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. * * * No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. * * * In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’ ”

In short, the government may not hinder a man in the exercise of his religion, nor may it affirmatively support him therein.

Mr. Justice Black in speaking of the Establishment Clause (Engel v. Vitale, 370 U. S. 421) said:

“Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion.”

Our inquiry then is: Has the defendant by its system of operation of its schools violated both the aforesaid Ohio Constitutional provisions or “Establishment Clause” of the First Amendment or the Equal Protection of the Law Clause of the Fourteenth Amendment to the Federal Constitution?

Plaintiff argues that the defendant’s action constitutes such violations through an accumulation of various sectarian practices employed by it in the operation of its schools. And the collective effect of all these practices has produced and is producing sectarian training of the pupils whose education is in the hands of the board.

Let us examine these practices as revealed through the evidence to determine whether they singly or cumulatively produce this effect.

The first of these claims which we consider is:

“That the defendant has, by its pupil placement plan, effected segregation of its charges by religious creed.”

They point to the fact that in three of its schools every child is of the Eoman Catholic faith and in the fourth school (East) most, if not all of the children, are non-Catholic. Is this situation the result of design by the board, or are the children, as claimed by the defendant, “attending the schools which their parents have chosen for them;” or is it the natural result of the high percentage of adherents to the Catholic faith who reside in the district?

The evidence indicates that both Catholic and non-Catholic families are intermingled throughout the district and it is fair to conclude, therefore, that if geographical lines were used in placing the pupils, there would certainly be some pupils of non-Catholic faith assigned to the West, St. Peters or Sharpsburg schools. And these schools would have some children attending them whose parents were not adherents to the Catholic faith. The dual bus routing system employed by the board is some evidence of the fact that attendance at these schools is not geographically determined. The fact that children of a non-Catholic family who are residing directly across the street from West School go to East School, some distance away, having the same grades they attend at East School, denies a geographical placement of pupils. Furthermore, the evidence reveals no boundaries for attendance areas were set by the board.

We are unable to conclude from the evidence that pupils are assigned to these schools chosen by the parents of all the children attending the four schools. Perhaps, as suggested by counsel for defendant, the enrollment of only Catholic children in West, St. Peters and Sharpsburg has resulted from parental choice. If that be the case, the natural inquiry which arises is: Is it constitutionally permissible for a Board of Education to allow parents of the pupils to determine, by respecting the parents ’ choice, that only children of a certain religious sect shall enroll in the schools under their control?

However, even if it be found that the defendant’s pupil placement plan or policy results in only the children of the Catholic faith attending these three schools, it does not necessarily follow that thereby the defendant has established “religion” in its schools if there be absent any evidence that instruction in the Catholic faith is being given to the pupils by the defendant. Such finding, however, would have to be considered in determining the narrower question of whether the defendant is using public funds to operate sectarian schools.

Plaintiff argues that the defendant’s pupil placement plan in effect in the district violates the Fourteenth Amendment and contends that Brown v. Board of Education, 347 U. S. 483, 98 L. Ed. 873, compels that conclusion. Brown held that segregation in the public schools based upon color was violative of the Fourteenth Amendment.

The defendant argues:

“There is no basis in the record of this case for any findings of fact of the nature which the Supreme Court of the United States deemed crucial in the Brown case and upon which the Brown decision rested. The Brown case was decided by the Supreme Court of the United States in the factual context of segregation of the Negro race in the United States and was founded upon specific findings of fact showing the harmful effects of school segregation upon the Negro child. A large volume of evidence was introduced demonstrating that the compulsory segregation of Negro children in schools had very strong sociological, psychological, educational and economic implications which were designed to and were keeping the Negro child in a definitely inferior position.”

We are in accord with this contention of the defendant. The history and beneficial educational accomplishments of the Catholic parochial school belie any claim that the religiously segregated pupils “motivation to learn” is adversely affected or that he or she received “educational opportunities substantially inferior” to the non-segregated pupil. Rather, that history is decidedly to the contrary.

The reasoning and philosophy contained in and which support the conclusion reached in Brown make that case, in our opinion inapplicable here.

Furthermore, as we view it, the decision in Brown does not mean that the states (Board of Education) are required to establish school districts in such a way as to insure racial integration (or integration by creed) nor that the Fourteenth Amendment requires boards to take steps to force the two races together (all religious creeds). Nothing in the court’s opinion in Brown can be interpreted to interfere with the normal districting (if it exists) of school areas on the basis of geographical lines. In some areas, those, for instance, completely or densely populated by Negroes or others having the same religious faith, a normal program of districting for school purposes — if it exists — will have the effect of a segregation program.

Plaintiff also argues that the board introduced sectarian religion into its schools by permitting and not barring, the wearing, by some of its teachers while teaching, the garb of the religious order to which they belong.

It is his contention that the wearing of a religious garb, which has a religious significance, by a member of a religious order while teaching in a public school, constitutes the introduction of sectarianism into the school and that is constitutionally prohibited.

Of course, it is not contended, nor could it be, that neither the religion of these teachers, nor their church membership, nor the holding of an ecclesiastical office or position disqualifies them from teaching in public schools.

The defendant cites respectable authority, notably Hysong v. School District, 164 Pa. 629, 30 Atl. 482; Rawlings v. Butler, Ky., 290 S. W. 2d 801, 60 A. L. R. 2d 285 and annotation therein; Gerhardt v. Heid, 66 N. D. 444, 267 N. W. 127; State v. Boyd, 217 Ind. 348, 28 N. E. 2d 256; and New Haven v. Torrington, 132 Conn. 194, 43 A. 2d 455, holding that the wearing of religious garb and the insignia of a religious order of the Eoman Catholic Church by members of that order while engaged in teaching in the public schools cannot be termed sectarian teaching.

We find no difficulty in agreeing with and do agree with these authorities and their holdings. Certainly, the wearing of the religious habit or garb by some of the defendant’s teachers, in and of itself, does not convert the school at which they teach into a sectarian school or create sectarian control within the purview of the Constitutions.

The Court of Appeals of Kentucky in Rawlings, supra, has put it well:

“While the dress and emblems worn by these Sisters proclaim them to be members of certain organizations of the Eoman Catholic Church and that they have taken certain religious vows, these facts do not deprive them of their right to teach in public schools, so long as they do not inject religion or the dogma of their church. The garb does not teach. It is the woman within who teaches. The dress of the Sisters denotes modesty, unworldliness and an unselfish life. No mere significance or insignificance of garb could conceal a teacher’s character. Her daily life would either exalt or make obnoxious the sectarian belief of a teacher.

“Our General Assembly has not yet prescribed what dress a woman teaching in the public schools must wear, or whether she may adorn herself with a ring, button, or any other emblem signifying she is a member of a sorority. These Sisters are not teaching religion in the public schools or attempting to force their religious views on the pupils under their charge. The religious views of these Sisters and their mode of dress are entirely personal to them. If they were prevented from teaching in the public schools'because of their religious beliefs, then they would be denied equal protection of the law in violation of the Fourteenth Amendment of the Federal Constitution. Cantwell v. State of Connecticut, 310 U. S. 296, 60 S. Ct. 900, 84 L. Ed. 1213. ’ ’ (Page 290 of 60 A. L. R. 2d.)

The weight of authority is to the effect that, in the absence of statute or regulation — non-existent here — religious garb may be worn by teachers in teaching in public schools.

The most serious question, in our opinion, raised here is whether the “released time” program in operation at West, St. Peters and Sharpsburg schools violates the “Establishment of Beligion” Clause of the First Amendment and the Ohio Constitution.

Does such program have the effect of providing sectarian instructions to public school children at public expense and of making the schools wherein it operates sectarian schools maintained and supported by public funds?

The fact that the pupils who attend these three schools are Catholic children makes them no less public school pupils and we must consider them only in that light as we seek answers to these questions from the law.

It is only when challenge is made to the share that the public schools have in the execution of a particular “released time” program that

“close judicial scrutiny is demanded of the exact relation between the religious instruction and the public educational system in the specific situation before the Court.” (Justice Felix Frankfurter) McCollum v. Board, 333 U. S. 203, 225, 92 L. Ed. 649, 666.

Challenge here being made to the share that the public schools under defendant’s supervision and control have in carrying out this particular program, we now give that “close judicial scrutiny to the exact relation between the religious instruction and the public educational system.”

We scrutinize this program in the light of the law set forth in the decisions of the Supreme Court of the United States in McCollum v. Board, supra, and Zorach v. Clauson, 343 U. S. 306, 96 L. Ed. 954.

Briefly stated, the facts in McCollum were as follows:

“A local board of education in Illinois agreed to the giving of religious instruction in the schools under a ‘released time’ arrangement whereby pupils whose parents signed ‘request cards’ were permitted to attend religious-instruction classes conducted during regular school hours in the school building by outside teachers furnished by a religious council representing the various faiths, subject to the approval and supervision of the superintendent of schools. Attendance records were kept and reported to the school authorities in same way as for other classes; and pupils not attending the religious instruction classes were required to continue their regular secular studies.”

The facts in Zorach were as follows:

“New York City had a program which permitted its public schools, upon written request of the parents, to release during a school day those students who attend religious courses operated outside the school building by, and at the expense of, a duly constituted religious body, all other students to remain in the classrooms. This program was attacked in the state courts as violating the provisions of the First Amendment which, as embodied in the Fourteenth Amendment, prohibit the states from establishing religion or prohibiting its free exercise. In upholding the validity of the program, the state court below refused to grant a trial on plaintiffs’ contention that the system was in fact administered in a coercive way, because this issue had not been properly raised in the manner required by state practice.”

Mr. Justice Black in McCollum said:

“ (T)he First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere. Or, as we said in the Everson case, the First Amendment has erected a wall between Church and State which must be kept high and impregnable.”

In the course of our scrutiny we ask: “Has the defendant also authorized the commingling of religious with secular instruction in the public schools and thereby breached the wall the Constitution has erected”? Is the defendant aiding and assisting a religious sect and thereby making it ‘ ‘ the beneficiary of its power to compel children to attend secular schools”?

We must, after a careful and studied consideration of the evidence and the law applicable thereto, answer the foregoing in the affirmative. The relationship between the church and the board might even be described here as a holy alliance.

And now we proceed to setting forth the reasons which we believe compel that conclusion:

The board directly provides the pupils for religious instruction through the use of its compulsory school machinery and indirectly provides the locations suitable for and conducive to and the personnel needed in the religious instruction given during the “released time.”

The locations used being accomplished by leasing buildings for school purposes from the church which are in such close proximity and readily accessible to the church of the same religious denomination as that of all the pupils. Collaboration of the church with the board and the board with the church is found in the fact that it charges the defendant a most nominal rental — one far, far, below the reasonable rental value of the buildings — as an inducement, no doubt, to the bringing of the pupils to the church for their religious instruction, and the board’s acceptance of such rental arrangement.

The defendant insists that the religious instruction of and services for the pupils are held and given off the school premises. Thus, escaping the condemnation of McCollum and in conformity with Zorach.

Brushing aside the form to get at the substance of this arrangement, legally permissible if not required, we cannot conclude that places where religious instruction is imparted are removed to locations sufficiently distant from the buildings wherein secular classes are held, to be deemed “away from” or “off the school premises.” Certainly, these places of religious instruction are not as totally removed as they were in Zorach. Distance, in this instance, is significant.

The defendant urges that the Zorach decision was based on the fact that there the religious instruction was not given in the school buildings and on public school premises. In this connection, the following taken from Justice Black’s dissent in Zorach is significant:

“As we attempted to make categorically clear, the McCollum decision would have been the same if the religious classes had not been held in the school buildings. We said: ‘Here not only are the State’s tax-supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through the use of the State’s compulsory public school machinery.’ ”

In view of the evidence showing the close proximity of classrooms to the place of religious instruction (in one instance, at least, both in the same building) the most unusual and ingenions or licensing arrangement existing between the church and board — revealed only through an examination of records — cannot serve to alter that which is obvious. One is reminded of the magician’s, “Now you see it — now you don’t.”

In the eyes of the pupils — impressionable children, future guardians of the constitutionally erected wall of separation between church and state, who go from the classroom at 11 a. m. each school day to the place of religious instruction, they neither leave what to them are the school premises nor do they escape the supervision and control of their teachers — the board’s representatives. Except on special occasions the children receive their religious instructions from the same teachers they have for their secular studies.

We, of course, do not mean to imply that it is impermissible for a public school board teacher to give religious instruction away from the school or that he or she forfeits the right so to do because of being a public school teacher; for to so hold would violate that teacher’s constitutional right to engage in the free exercise of his religion. However, the arrangement that exists in this case must be taken into consideration in determining whether the board participates with, aids or collaborates with the church in providing religious instruction.

The defendant makes the sweeping statement and claim that the teachers who teach religion during the “released time” periods “are not acting as public school teachers while engaged in teaching religion.” And they further claim “They are not subject to the control and direction of the School Board.”

It is also stated and the evidence supports the claim, that the teachers are not compensated by the board for such religious teaching. Though it be true that the teachers are not compensated by the defendant for the religious instruction duties that they perform, it is equally true that no deduction from their compensation is made for the hour each spends each day in the giving of such religious instruction.

In the final analysis, the test is not whether the board actually exercises control over the teachers during the “released time,” but whether it has the right to exercise such control.

It is reasonably inferable from the evidence that the board has not surrendered its right to exercise control over the teachers during this period. Most of the teachers lead or follow the pupils from the classroom to the place where they are to receive religious instruction or take part in religious services. Are they then not still in the performance of their duties as teachers — subject to the board’s right to control?

It is our opinion that the religious education of the pupils attending West, Sharpsburg, and St. Peters schools provided through the “released time” program in operation at those schools is “patently woven into the working scheme of the school” and “presents powerful elements of inherent pressure by the school system in the interest of a religious sect.”

The facts of this case, we believe, compel the conclusion that

“This ‘released time’ program is founded upon a use of the State’s power of coercion which . . . determines its unconstitutionality.” (Justice Jackson’s dissent in Zorach.)

And the public schools are used as: “instruments for securing attendance at denominational classes.” (Justice Frankfurter’s dissent in Zorach.)

The evidence furnishes further indicia that the board is making use of public school funds to operate sectarian parochial schools wherein religious instruction is given. We list some of these indicia:

The teacher recruitment and replacement method employed by the board results in obtaining teachers of the Eoman Catholic faith who are capable of and willing to give religious instruction and in replacing those teachers when necessary with teachers of the same religious faith.

The frequency of and time given to religious instruction (every school day for one hour).

The fact that some children only of the Catholic faith residing outside of the district are enrolled in the defendant’s school and their tuition in part paid by the parish is revealing as to the religious nature of and what takes place in respect to furthering that religion in the school.

The failure on the part of the board to adopt rational bases for establishing pupil attendance areas or designating boundary lines setting off areas from which the pupils will be drawn.

But one religious sect, to the exclusion of all others, is the recipient of instruction in its religious faith through the “released time” program.

The commencement and closing hours of the school day at West, Sharpsburg, and St. Peters are practically the same. However, they differ from those at East and the “released time” program at the three schools accounts for such variance in schedule. The pupils at East, being also under the control of the board, do not commence and finish their classroom work each day at the same times as the pupils in the three aforementioned schools.

The “released time” program operates only at and is confined to West, Sharpsburg and St. Peters and East is not included therein.

We feel here as did Mr. Justice Frankfurter in McCollum that:

“The momentum of the whole school atmosphere and school planning is presumably put behind religious instruction . . . precisely in order to secure for the religious instruction such momentum and planning.”

In answer to those who might claim that the practices here engaged in by the board are relatively minor and insignificant encroachments on the First Amendment, our reply is given in the words of Mr. Justice Clark in School District v. Schempp, 374 U. S. 203:

“The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, ‘It is proper to take alarm at the first experiment on our liberties.’ ”

The Supreme Court of the United States in the cases of Engel v. Vitale, 370 U. S. 421, 8 L. Ed. 2d 601 (New York Prayer case), decided June 25, 1962, 14 years after McCollum and 11 years after Zorach; School District v. Schempp, 374 U. S. 203, 10 L. Ed. 2d 844, decided June 17, 1963 (Bible reading and Lord’s prayer cases), struck down, as a violation of the “Establishment Clause” of the First Amendment state action considerably more feeble than that which confronts us in the case at bar.

The reasoning of and the statements made and the philosophy expressed in the opinions of the justices in those cases, we believe support and fortify us in the conclusion here reached.

It is well to reassert that which Mr. Justice Frankfurter said in McCollum:

‘ ‘ The public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces than in its schools, to avoid confusing, not to say fusing, what the Constitution sought to keep strictly apart. ...”

“We renew our conviction that ‘we have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion.’ If nowhere else, in the relation between Church and State, ‘good fences make good neighbors.’ ”

We must conclude that the defendant has breached the “Wall.” It must be repaired.

The plaintiff will, therefore, be awarded that declaratory judgment and granted such injunctive relief against the defendant which this opinion permits and supports and an entry may be prepared in accordance therewith.

Judgment accordingly.

Cramer, J., of Butler County sitting by assignment in Mercer County.  