One of the most bizarre laws in New Jersey's complex of unfunded mandates is the law on when public school districts have to pay for a portion of private school transportation.
The law is complex, but it is tied to the law for bussing regular public school kids.
The law for public school bussing is that if a K-8 general education child lives more than 2.0 miles from his or her school, the district must bus him or her. If a child in grades 9-12 lives more than 2.5 miles from his or her school the district must bus him or her.
The law on private school bussing is basically such that if a school district has sending zones that trigger any mandatory public school bussing, it must also provide busses or cash payments for transportation to K-8 private school children who live more than 2.0 miles from their school and 9-12 private school children who live more than 2.5 miles from their school.
The cash payment is known as "Aid in Lieu of Transportation" and is $884. The amount is supposed to increase with inflation, but the legislature has frozen the payment at $884 for several years. If transportation costs per student are less than $884 districts are supposed to provide a bus; if costs per student exceed $884 districts are supposed to provide the payment.
(update, the aid-in-lieu payment was increased to $1,000 per qualifying student for 2017-18)
The only discretion a district has regarding private school transportation is whether or not to provide courtesy bussing if the private children live closer than 2.0 or 2.5 miles from their schools. (Lakewood is the only district I know of that provides courtesy bussing to private school students, but there might be others (email me if you know of any.))
The law on private school transportation is very convoluted because when it was passed in 1967 the United States Supreme Court would not allow public money to go to parents who might spend it on religious (usually parochial) school tuition.
At the time, the Supreme Court's doctrine was contained in a 5-4 decision known as Everson v BOE, in which the United States Supreme Court majority decided that transportation was so peripheral to "religious indoctrination" (as critics called parochial schools) that it was Constitutionally allowable.
Coincidentally, (Everson v BOE) arose out of New Jersey:
New Jersey cannot consistently with the 'establishment of religion' clause of the First Amendment contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church. On the other hand, other language of the amendment commands that New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.
While we do not mean to intimate that a state could not provide transportation only to children attending public schools, we must be careful, in protecting the citizens of New Jersey against state-established churches, to be sure that we do not inadvertently prohibit New Jersey from extending its general State law benefits to all its citizens without regard to their religious belief [330 U.S. 1, 17]
Measured by these standards we cannot say that the First Amendment prohibits New Jersey from spending taxraised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools.
It is undoubtedly true that children are helped to get to church schools. There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets when transportation to a public school would have been paid for by the State. The same possibility exists where the state requires a local transit company to provide reduced fares to school children including those attending parochial schools, or where a municipally owned transportation system undertakes to carry all school children free of charge.
Moreover, state-paid policemen, detailed to protect children going to and from church schools from the very real hazards of traffic, would serve much the same purpose and accomplish much the same result as state provisions intended to guarantee free transportation of a kind which the state deems to be best for the school children's welfare. And parents might refuse to risk their children to the serious danger of traffic accidents going to and from parochial schools, the approaches to which were not protected by policemen. Similarly, parents might be reluctant to permit their children to attend schools which the state had cut off from such general government services as ordinary police and fire protection, connections for sewage disposal, public [330 U.S. 1, 18] highways and sidewalks.
Of course, cutting off church schools from these services, so separate and so indisputably marked off from the religious function, would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment. That Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them.
Hence, in 1967 under Richard J. Hughes, New Jersey was allowed to support private schools, but had to do it in a very indirect, convoluted way.
In the decades after Everson until the 1990s the SCOTUS restricted the ability of states and districts to funding private schools due to Establishment Clause issues, but the SCOTUS never overturned Everson.
(It should be noted that in NJ there are other public subsidies for private education, including textbooks, nursing, and
The only public subsidies for private schools that come from local taxdollars are for transportation.)
The convoluted nature of New Jersey's transportation law creates numerous bizarre and often unfair consequences.
If a child lives in a bussing town and attends a private school a few miles away, he or she gets money. If a child lives in the same town, but attends a private school in the town that is under 2.0 miles from his or her home, she or he gets nothing.
Most medium-sized and large districts do have to pay for bussing but compact districts - like Glen Ridge and Verona - don't.
|(Note. Only the scenario is real. These are not photos of real Newark Academy students.)|
Constitutionally, the Bussing Law Can Now Be Changed
Anyway, the Supreme Court changed its interpretation of the Constitution on the provision of public money to private and religious schools in 2002 in another 5-4 decision, Zelman v. Simmons-Harris. Zelman allowed vouchers to be used at religious schools if the following tests were met.
- the program must have a valid secular purpose
- aid must go to parents and not to the schools
- a broad class of beneficiaries must be covered
- the program must be neutral with respect to religion
- there must be adequate nonreligious options
Furthermore, in a 2011 case, Arizona Christian School Tuition Organization v. Winn, the US Supreme Court differentiated tax credits from government spending and so said that taxpayers lacked the standing to object to tax credit programs that benefit private, even religious, schools.
Finally The NJ Constitution also has a paragraph expressively allowing transportation to "any school."
3. The Legislature may, within reasonable limitations as to distance to be prescribed, provide for the transportation of children within the ages of five to eighteen years inclusive to and from any school.
Given the NJEA's power, I doubt reform will happen, but the US Supreme Court attitude that once stifled consistent district-to-district and school-to-school assistance to private schools is no longer in effect. At this point maybe it's time to reform one of the most byzantine and unfair education laws on the books in New Jersey?