Religion and the Law of Church and State and the Supreme Court

By Philip B. Kurland | Go to book overview

8
THE SCHOOL BUS CASE: THE PRECEDENT OF BYRON'S JULIA

In the cases that preceded Everson v. Board of Education,280 the Court had seldom undertaken to supply content to that part of the first amendment concerned with separation. The Court had, theretofore, more or less assumed that the freedom provision was separable from the separation clause and, therefore, could be treated in the same manner as those referring to speech, press, and assembly. Thus, when Everson came before them, the justices were able to write on a comparatively clean slate, at least insofar as their judgments rather than their dicta were concerned. They fully utilized the opportunity: the Everson problem was canvassed by three separate opinions covering seventy-four pages. The Court was divided five to four.

The litigation arose out of payments made by the township of Ewing, New Jersey to parents of parochial school children in reimbursement for the costs of transportation of those children to their school. A taxpayer of the township took exception to the payments and brought suit to effectuate his objections. The payments had been made for this transportation pursuant to a state statute and a resolution of the school board of Ewing purportedly issued in accordance with the statute. The exact language of each is relevant to an evaluation of the various opinions. The statute read as follows:

Whenever in any district there are children living remote from any school- house, the board of education of the district may make rules and contracts for the transportation of such children to and from school, including the transportation of children to and from school other than a public school, except such school as is operated for profit in whole or in part.

When any school district provides any transportation for public school children to and from school, transportation from any point in such established school route to any other point in such established school route shall be supplied to school children residing in such school district in

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Religion and the Law of Church and State and the Supreme Court
Table of contents

Table of contents

  • Title Page 3
  • Preface 7
  • Contents 11
  • Part One - A Doctrine In Search of Authority 13
  • Introduction 16
  • Part Two - Authorities In Search of a Doctrine 19
  • 2 - The Early Mormon Cases 21
  • 3 - The Apocrypha 26
  • 4 - The Problem Of Standing to Sue 32
  • 5 - "Patriotism is Not Enough" -- or is It? 37
  • 7 - The Trial of "Saint Germain"' 75
  • 8 - The School Bus Case: The Precedent of Byron's Julia 80
  • 9 - Released Time: The Precedent of Julia Again 86
  • 10 - Of Czar and Commissar 91
  • 11 - Never on Sunday 97
  • 12 - The Notary's Oath 107
  • Part Three- Conclusion 109
  • 13 - Conclusion 111
  • Notes 113
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