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CALIFORNIA TEACHERS ASSOCIATION v. RILES

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Court of Appeal, Second District, Division 5, California.

CALIFORNIA TEACHERS ASSOCIATION, etc., et al., Plaintiffs and Appellants, v. Wilson RILES, etc., et al., Defendants and Respondents.

Civ. 53925, Civ. 57263.

Decided: September 02, 1980

Mitchel J. Ezer, Allen M. Rosenthal, Fred Okrand, Los Angeles, and Peter T. Galiano, Burlingame, for plaintiffs and appellants. George Deukmejian, Atty. Gen., Philip C. Griffin, Deputy Atty. Gen., Thomas M. Griffin, Chief Counsel, Dept. of Education, Roger D. Wolfertz, Staff Counsel, Dept. of Education, Sacramento, for defendants and respondents.

Introduction

Plaintiffs filed two actions challenging the state's program for lending state-adopted textbooks to nonpublic school students. Appeals from judgments in these actions have been consolidated.

In 1972, the California Legislature added to the Education Code sections 9505 and 9445 (now sections 60315 and 60246).1

Plaintiffs' first suit challenged the enactments under the First Amendment to the United States Constitution and under both article 9, section 8 and article 16, section 5 of the California Constitution.2

While the Education Code refers to “instructional materials” and “educational materials,” the issue in these two cases is limited to the loan of textbooks.

A “nonpublic school,” as defined by section 60026,3 is one that satisfies the requirements of section 48222, concerning exemptions from the state's compulsory attendance requirement, and is exempt from taxation under Revenue and Taxation Code section 214, which applies only to schools controlled by nonprofit organizations.

On August 11, 1976, the first case was tried without a jury. Testimony was taken for two days.4

On October 13, 1977, findings of fact and conclusions of law were filed and a judgment issued in favor of defendants, declaring the code sections to be constitutional. From this judgment, plaintiffs appeal.

The trial court expressly declined to decide the validity of the administrative practices of the Superintendent of Public Instruction and of the Board of Education in the implementation of the code sections in question, on the ground that such relief was not requested in the action and because the parties expected to litigate those questions in a separate lawsuit to be heard by the same trial court.

The second case was filed challenging the administration of the code provisions. It was assigned to the original trial judge for all purposes, but before it could progress to trial, that judge unexpectedly retired.

The case was then assigned to a second judge who heard the matter sitting without a jury. The matter was tried on the basis of certain exhibits received in the trial of the first case, supplemented by additional exhibits and some brief trial testimony. On January 24, 1979, the court issued findings of fact and conclusions of law and a judgment in favor of defendants, concluding that the administrative practices of the Superintendent of Public Instruction and the Board of Education used in implementing the loan program, are constitutional. From this judgment plaintiffs appeal.

The textbook loan program code provisions, as they read and as they are administered, violate neither the United States nor the California Constitutions.

There is no factual dispute as to the manner in which the loan program is implemented.

Under section 60200, the State Board of Education adopts textbooks for use in kindergarten and grades one through eight and allows district school boards to request textbooks outside the approved list subject to state board specifications.

Under section 33190, each year, nonpublic schools must report enrollment on a private school affidavit. Based upon the total enrollment, the controller transfers money from the general fund to the State Instructional Materials Fund at a fixed sum per pupil under section 60246.

Based on pupil enrollment for the preceding fiscal year, each nonpublic school having students participating in the textbook loan program is assigned a collective credit, which is the administrative credit, per pupil, of the combination of that credit and cash allotment established per unit of average daily attendance in the public school districts pursuant to section 60246.

This administrative device enables the state to determine the amount of textbook funds available for loans of textbooks to nonpublic school pupils and to determine the cost of the loan program for purposes of the instructional materials encumbrance under section 60241(b). Any unused “credit” is carried over into the subsequent fiscal year, as is done regarding public school districts pursuant to section 60245. A statement of the amount of credit for pupils attending a nonpublic school is sent to that school with the forms.

Under section 60315, the pupils of a nonpublic school may request the loan of textbooks from the state-approved adopted list. A textbook loan generally results from an inquiry from a qualifying nonpublic school stating a desire that its students participate in the program. The department then sends the school both textbook order forms, which are to be completed by the school, and request for loan forms (form NPS-2) prepared by the schools for signature by the parents of pupils. Form NPS-2 does not specify particular books. It is a request by children through their parents that books be lent to said children. One NPS-2 form has sufficient space for naming all children in a family and remains in effect so long as any of them attend that school. The completed form is kept on file by the nonpublic school and is available for inspection by authorized State Department of Education officials as long as a pupil is enrolled in the school.

Based upon the completed request forms, the nonpublic school, on behalf of its individual pupils, places an order directly with the State Department of Education. The order may be for state-adopted textbooks and workbooks or for nonadopted textbooks and workbooks pursuant to section 60200(c). The nonpublic school must certify on the form: “I certify that no charge will be made to any pupils for the instructional materials lent to them which were received from the State of California under the authority of Education Code section . . . (60315). I further certify that no instructional materials will be lent to any pupil for whom a completed and signed ‘request for the loan of free instructional materials,’ form No. NPS-2, is not on file.”

Nonpublic schools may not order materials which are not on the book adoption list unless a public school has requested such books and said books have been approved by the board of education under section 60200(c).

In the Los Angeles area, the Catholic Archdiocese collects the order forms from its schools and forwards them to the department after ascertaining the textbooks ordered are on the Archdiocesan approved list. If a school wishes to include a textbook not on said list, the school has an opportunity to show why the Archdiocese Department of Education should make an exception regarding that particular book to be loaned to those particular pupils.

The State Department of Education orders textbooks for pupils from the state printer or from other publishers. For administrative and cost considerations, textbooks are shipped directly to each individual nonpublic school for distribution to its borrowing pupils. For this purpose, the State Department of Education considers the administrative head of the nonpublic school to be the department's distributing agent. Teachers' editions of textbooks, teachers' manuals and guides and similar teacher directive materials are excluded from the loan program. When the nonpublic school receives shipment of the textbooks, it notifies the Department of Education and the State Controller pays the publisher.

The nonpublic schools distribute textbooks to the pupils for their use during the school year. At the end of the school year, the books are collected by the schools and stored for redistribution the following year or for other disposition. The State Department of Education does not collect its textbooks when the pupils to whom the books have been loaned are finished with them. The books may be borrowed and used by other qualified pupils of the school upon completion of form NPS-2 for said other pupils.

If the nonpublic school students will not require further use of the textbooks, they are to be returned to the Department of Education for storage.

The administrative head of each nonpublic school is directed to collect from the responsible pupil and to remit to the department the cost of any loaned textbook which has been lost or damaged. The sums, thus collected, are added to the credit of the nonpublic school. All unused credit is accumulated and retained on the school's account for use in the next fiscal year (per s 60245).

The State Department of Education advises nonpublic schools that obsolete or surplus textbooks loaned to nonpublic school pupils may be disposed of in accordance with the law in effect at the time such books are declared by the state to be obsolete or in surplus, in accordance with sections 60500-60530 and with title 5, sections 9520-9524, California Administrative Code.

The textbook loan program code provisions, either facially or as administered, do not violate the First Amendment to the United States Constitution.

Plaintiffs conceded during oral argument that case law did not support their contentions with respect to the First Amendment.

We agree.

Certainly, state loans of textbooks to non-public school students have the effect of providing some benefit to those schools, many of which are church-related institutions. However, it is clear that such benefits, even though in some cases the benefits may be substantial, are both indirect and incidental. Under the United States Constitution, indirect and incidental benefits to religious schools are permissible so long as the direct beneficiaries of a textbook loan program are the individual students and their parents.

In a series of cases from 1968 through June 1977, Board of Education of Central School District No. 1 v. Allen,5 Wolman et al. v. Walter6 and Meek v. Pittenger,7 the United States Supreme Court has upheld the constitutionality of three textbook loan programs which are substantially similar to the California program.

Appellants then argue that the textbook loan program violates the California Constitution.

Section 60315 violates neither article 9, section 8 nor article 16, section 5 of the California Constitution.

In the first trial the court held that the challenged provisions of the Education Code, on their face: “. . . have a clearly secular legislative purpose; have a principal and primary effect that neither advances nor inhibits religion and do not foster an excessive government entanglement with religion and therefore do not violate the First Amendment of the Constitution of the United States when limited to instructional materials such as textbooks or other such materials for the individual use of the pupil.” (Conclusion of Law No. 1) Further the court held that those sections of the Education Code, on their face: “. . . provide no official involvement of the State which has the direct, immediate and substantial effect of promoting religious purposes nor do they involve the expenditure of public money for the direct benefit of any sectarian or denomination school or any school not under the exclusive control of the officers of the public schools, any benefit to such schools, being both indirect and incidental, and therefore do not violate Article XVI, section 5 (formerly Article XIII, section 24), or Article IX, section 8 of the California Constitution when limited to instructional materials such as textbooks or other such materials for the individual use of the pupil.” (Id., Conclusion of Law No. 2.)

The trial court found that the loan program provided no official involvement of the state that has the “direct, immediate and substantial effect of promoting religious purposes.” Further the trial court found that the program does not involve the expenditure of public money for the direct benefit of any sectarian or denomination school or for any school not under the exclusive control of the officers of the public schools.

The court found that any benefits to nonpublic schools, even if substantial, were both indirect and incidental.

The trial court further found that the following allegations had not been proved: (a) that religious parochial schools attended by students to whom textbooks are lent conduct their operations, curricula and programs to fulfill religious purposes; impose religious restrictions on what can be taught; and blend sectarian and secular instruction programs; that textbooks furnished under the program are instrumental in the teaching of religion, or are used to convey religious messages or inculate religion through sectarian construction or interpretation of the textbooks, or are selected by parochial school officials to promote religion or that when used in the overall matrix of the religious parochial schools the loaned books convey an undeniably religious message to the pupils; or that the program requires a direct subsidy to religious parochial schools or that the budget of those schools whose pupils receive loaned textbooks under the program is reduced by the same amount as the cost to the State of California of said books.

The evidence is ample to support the findings of the trial court.

Where the evidence is in conflict, the appellate court will not disturb the verdict of the jury or the findings of the trial court. The presumption being in favor of the judgment the court must consider the evidence in the light most favorable to the prevailing party, giving him the benefit of every reasonable inference, and resolving conflicts in support of the judgment. (Witkin, Cal. Procedure (2d ed.) vol. 6, p. 4236; Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 45 P.2d 183.)

The trial court found as a matter of fact and law that the program does not differ materially from the loan programs upheld in Wolman, Meek and Allen and, thus that sections 60315 and 60246 on their face clearly satisfy all First Amendment requirements. The statutes create a loan program for a legitimate purpose and requires that material loaned under the program have been adopted by the State Board of Education for use in public elementary schools.

We concur.

In Bowker v. Baker, et al. (1946) 73 Cal.App.2d 653, 167 P.2d 256 and California Educational Facilities Authority v. Priest, etc. (1974) 12 Cal.3d 593, 116 Cal.Rptr. 361, 526 P.2d 513,8 California has created and continued to utilize an “incidental” benefit test under the establishment clauses of the California Constitution, which is essentially identical to the test used by the United States Supreme Court to uphold textbook loan programs in Allen, Meek and Wolman. The Bowker case involved the transportation of parochial school pupils on public school district owned school buses pursuant to Education Code section 16257, which provided: “ ‘The governing board of any school district may allow pupils entitled to attend the school of the district but in attendance at a school other than a public school, under the provisions of Section 16624, transportation upon the same terms and in the same manner and over the same routes of travel as is permitted pupils attending the district school.’ ”

“ ‘The allowance of this section shall be restricted to actual transportation when furnished by the district to children attending the district school, and nothing in this section shall be construed to authorize or permit in lieu of transportation payments of money to parents or guardians of children attending private schools.’ ”

The court stated “If the transportation of pupils to and from public schools is authorized, as it certainly is, and if the benefit from that transportation is to the pupils, then an incidental benefit following to a denominational school from free transportation of its pupils should not be sufficient to deprive the Legislature of the power to authorize a school district to transport such pupils,” at page 663, 167 P.2d at page 261.

“In view of the broad police powers of the state to promote the educational welfare and safety of its citizens, including little children, of the broad mandate to the Legislature found in section 1, article IX of the Constitution, of the fact that the direct benefit of the legislation authorizing the transportation of pupils attending private schools flows to the children in providing for their safety and promoting their education, with only an indirect benefit to the private parochial school, and in view of the rule that requires us to resolve any doubt in favor of the constitutionality of a challenged act of the legislature, we conclude that the legislation is constitutional and is not subject to the attack made here.” (Pp. 666-667, 167 P.2d at page 263.) (Emphasis added.)

The textbook loan program is being administered in a constitutional manner. Section 60315 does not mandate any particular method of implementing the textbook loan program. The actual manner of administration has been developed by the State Board of Education and the Superintendent of Public Instruction.

Plaintiffs allege that the program is being administered in a manner that converted it into a sham and a subterfuge under which there is being accomplished indirectly what cannot be accomplished directly under the California and United States Constitutions and that a variety of administrative practices used to implement the loan program transform that program into an outright grant of aid (textbooks) directly to the nonpublic schools of the state, thereby constituting a public-fund subsidy of the religious parochial schools participating therein. These allegations were rejected by the second trial court and the court held that the facially valid textbook loan program was not being implemented in such a way as to render the present administrative practices unconstitutional.9

When we consider whether the textbook loan program provides church-related schools with anything other than constitutionally permissible, indirect benefits, we must conclude that it does not. The program, as currently administered, does not differ from the textbook loan programs upheld by the United States Supreme Court in Allen, Meek and Wolman, all discussed above. The state's administrative practices represent nothing more than procedural and accounting devices used to provide a fair and effective method of administering the program. The books are loaned to the students and the direct benefits for use thereof flow to the students not to the schools.

We note that sections 151 and 152 give the State Board of Education authority to determine all questions of policy within its power and to adopt rules and regulations not inconsistent with the laws of California. This allows for some discretion, within the scope of the controlling statute, exercise of which will not be disturbed by the courts. (Henry's Restaurants of Pomona, Inc. v. State Bd. of Equalization (1973) 30 Cal.App.3d 1009, 106 Cal.Rptr. 867.)

“An administrative agency charged with carrying out a particular statute must adopt some preliminary construction of the statute as a basis upon which to proceed. This administrative interpretation of a statute will be accorded great respect and will be followed if not clearly erroneous. Such construction and interpretation are questions of law, the ultimate resolution of which rests with the courts. (Bodinson Mfg. Co. v. California Employment Com. (1941) 17 Cal.2d 321, 325 (109 P.2d 935); Coca-Cola Co. v. State Bd. of Equalization (1945) 25 Cal.2d 918, 921 (156 P.2d 1); Rivera v. City of Fresno (1971) 6 Cal.3d 132 (98 Cal.Rptr. 281, 490 P.2d 793); Culligan Water Conditioning v. State Bd. of Equalization (1976) 17 Cal.3d 86, 93 (130 Cal.Rptr. 321, 550 P.2d 593); Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303, 310 (118 Cal.Rptr. 473, 530 P.2d 161).)”

The second trial court's findings of fact were fully supported by evidence at the trial, and we concur with them.

Plaintiffs, in addition to arguing their general unhappiness with the California and United States cases mentioned above, have cited numerous cases from other jurisdictions. We have examined those cases but do not address them at this time, since the law in California appears to be clearly in favor of the constitutionality of these code provisions, and since the cases cited appear to be from jurisdictions which do not follow California's “indirect benefit” rule.

In each case the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.  Section 60315: “The Superintendent of Public Instruction shall lend to pupils entitled to attend the public elementary schools of the district, but in attendance at a school other than a public school under the provisions of Section 12154 (now section 48222), instructional materials adopted by the state board for use in the public elementary schools. No charge shall be made to any pupil for the use of such adopted materials.“Materials shall be loaned pursuant to this section only after, and to the same extent that, materials are made available to students in attendance in public elementary schools. However, no cash allotment may be made to any nonpublic school.“Materials shall be loaned for the use of nonpublic elementary school students after the nonpublic school student certifies to the State Superintendent of Public Instruction that such materials are desired and will be used in a nonpublic elementary school by the nonpublic elementary school student.”Section 60246: “The State Controller shall during each fiscal year, commencing with fiscal year 1973-1974, transfer from the General Fund of the State to the State Instructional Materials Fund, an amount of seven dollars ($7) per pupil in average daily attendance in the public and nonpublic elementary schools during the preceding fiscal year, as certified by the Superintendent of Public Instruction, except that this amount shall be adjusted annually in conformance with the Consumer Price Index, all items, of the Bureau of Labor Statistics of the United States Department of Labor, measured for the calendar year next preceding the fiscal year to which it applies. For purposes of this section, average daily attendance in the nonpublic schools shall be the enrollment reported pursuant to Section 29009.5.” (Emphasis added to indicate the passages of section 9445 relating to the nonpublic schools.)

2.  Article 9, section 8 provides: “. . . no public money shall ever be appropriated for the support of any sectarian or denominational school or any school not under the exclusive control of the officers of the public schools . . . .”Article 16, section 5 provides: “Neither the Legislature, nor any County . . . shall ever make any appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed or sectarian purpose, or help to support or sustain any school . . . controlled by any religious creed, church or sectarian denomination whatever; nor shall any grant or donation of personal property . . . ever be made . . . for any religious creed, church or sectarian purpose whatever . . . .”

3.  All code section numbers are Education Code unless otherwise designated.

4.  The following items were received into evidence: a stipulation regarding documents (plaintiff's exh. 4), to which 80 pages of documentary materials are attached; a stipulation of agreed facts, which has attached a number of documents; the depositions of Monseignor John Mihan, Superintendent of Education for Elementary Schools of the Los Angeles Catholic Archdiocese; the depositions of Sister Margaret Mary Fitzsimmons, Principal of St. Bridgets of Sweden Catholic Elementary School; and the joint deposition of Walter Johnson, former Chief of the Textbook Distribution Officer of the State of California, Department of Education, and Ellsworth Chunn, then the Chief, Textbook Distribution Officer.

5.  In Bd. of Education of Central School Dist. No. 1, et al. v. Allen, et al. (1967) 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 a law of the State of New York required local public school authorities to loan textbooks free of charge to all students in grades seven through twelve. Students in private schools were included. The case presented the question as to whether the statute was a “law respecting an establishment of religion, or prohibiting the free exercise thereof,” (p. 238, 88 S.Ct. p. 1924) and thus in conflict with the First and Fourteenth Amendments to the Constitution since it authorized the loan of textbooks to students attending parochial schools. The Supreme Court held the law was not a violation of the Constitution. “The books (were) text-books which (were) designated for use in any public, elementary or secondary schools of the state or are approved by any board of education, . . .” (P. 239, 88 S.Ct. p. 1924)“The express purpose of . . . (the law) was stated by the New York Legislature to be furtherance of the educational opportunities available to the young. Appellants have shown us nothing about the necessary effects of the statute that is contrary to its stated purpose. The law merely makes available to all children the benefits of a general program to lend school books free of charge. Books are furnished at the request of the pupil and ownership remains, at least technically, in the State. Thus no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools. Perhaps free books make it more likely that some children choose to attend a sectarian school, but that was true of the state-paid bus fares in Everson (v. Board of Education, et al. (1946) 330 U.S. 1 (67 S.Ct. 504, 91 L.Ed. 711)), and does not alone demonstrate an unconstitutional degree of support for a religious institution.”“The major reason offered by appellants for distinguishing free textbooks from free bus fares is that books, but not buses, are critical to the teaching process, and in a sectarian school that process is employed to teach religion. However, this court has long recognized that religious schools pursue two goals, religious instructions and secular education.” (P. 245, 88 S.Ct. pp. 1926-1927)

6.  Wolman, et al. v. Walter, et al. (1977) 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714, involved an Ohio law providing, in part, funding for the lending of secular textbooks approved by the Superintendent of Public Instruction for use in public schools, to nonpublic school children, on request of the children or their parents, made to the nonpublic school. “In order to pass musters, a statute must have a secular legislative purpose, must have a principal or primary effect that neither advances nor inhibits religion, and must not foster an excessive entanglement with religion.” (P. 236, 97 S.Ct. p. 2599) While the court found that other sections of the act, having to do with instructural material and equipment, were unconstitutional, in view of the difficulty in separating the secular education function from the sectarian, it found no such problem with respect to the loan of secular school books.

7.  In Meek, et al. v. Pittenger, et al. (1974) 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217, the Supreme Court again applied the “three-point test.” First, the statute must have a secular legislative purpose. Second, it must have a “primary effect” that neither advances nor inhibits religion. Third, the statute and its administration must avoid excessive government entanglement with religion.The court noted that not all legislative programs that provide indirect or incidental benefit to a religious institution are prohibited by the Constitution. “The problem, like many problems in constitutional law, is one of degree.” (Zorach v. Clauson, 343 U.S. 306, 312, 314, 72 S.Ct. 679, 684, 96 L.Ed. 954.)Again the law “. . . similarly limits the books that may be lent to ‘textbooks which are acceptable for use in any public, elementary, or secondary school of the Commonwealth.’ Moreover, the record in the case before us, like the record in Allen, see, e. g., 392 U.S. at 244-245, 248, (88 S.Ct., at 1926-1927, 1929) contains no suggestion that religious textbooks will be lent or that the books provided will be used for anything other than purely secular purposes.”In sum, the textbook loan program “ ‘. . s. merely makes available to all children the benefits of a general program to lend school books free of charge.’ As such, those provisions . . . do not offend the constitutional prohibition against laws ‘respecting an establishment of religion.’ ”

8.  In California Educational Facilities Authority v. Priest, etc. (1974) 12 Cal.3d 593, 116 Cal.Rptr. 361, 526 P.2d 513, the Supreme Court considered an act authorizing revenue bonds for providing private nonprofit institutions of high education with funds for the expansion of physical facilities. The funds could not be used in any way as a place of workshop or for sectarian instruction of any kind, and the recipient institutions could neither restrict entry on racial grounds nor require all students gaining admission to receive instruction in the tenets of a particular faith.“The Supreme Court held that the California Constitution bars not only direct expenditures of public funds in support of sectarian organizations and purposes, but also any official involvement, whatever its form, which has the ‘direct, immediate, and substantial effect of promoting religious purposes.’ 12 Cal.3d at 605 n. 12 (116 Cal.Rptr. 361, 526 P.2d 513). Nevertheless, the Court expressly stated that the California Constitution does not require government hostility to religion, and does not ‘prohibit a religious institution from receiving an indirect, remote, and incidental benefit from a statute which has a secular primary purpose.’ Id. at 605 (116 Cal.Rptr. 361, 526 P.2d 513). The crucial question in evaluating a statute such as that before the Court in Priest or such as section 60315 in the instant case the California Supreme Court stated, is not whether the Act provide some form of benefit to a sectarian institution, ‘but whether that benefit is incidental to a primary public purpose.” Ibid.“ ‘(Article 16, Section 5 (formerly Article 13, Section 24)) has never been interpreted, however, to require governmental hostility to religion, nor to prohibit a religious institution from receiving an indirect, remote, and incidental benefit from a statute which has a secular primary purpose. (See, e. g., Lundberg v. County of Alameda (1956) 46 Cal.2d 644 (298 P.2d 1), upholding tax exemption for parochial primary and secondary schools.) In Bowker v. Baker (1946) supra, . . . the court recognized that ‘many expenditures of public money give indirect and incidental benefit to denominational schools and institutions of higher learning. Sidewalks, streets, roads, highways, sewers are furnished for the use of all citizens regardless of religious belief. . . . Police and fire departments give the same protection to denominational institutions that they give to privately owned property and their expenses are paid from public funds.’ ”“ ‘The Act here challenged clearly provides a ”benefit“ in that it enables sectarian institutions to borrow money through the use of a state instrumentality at a cost below that of the marketplace. Thus, the crucial question is not whether the Act provides such a benefit, but whether that benefit is incidental to a primary public purpose. The framers of the Constitution recognized the importance of education in our social fabric, and imposed a constitutional duty on the Legislature to ”encourage by all suitable means the promotion of intellectual . . . improvement.“ (Art. IX, s 1.) The present law is responsive to that mandate. . . .” 12 Cal.3d at 605, 116 Cal.Rptr. at 369, 526 P.2d at 521 (emphasis added; footnote omitted).

9.  “1. The administrative practice of the Superintendent of Public Instruction and the Board of Education in the implementation of section 60246 and section 60315 of the Education Code has a clearly secular legislative purpose; has a principal and primary effect that neither advances nor inhibits religion and does not foster an excessive government entanglement with religion and therefore does not violate the First Amendment of the Constitution of the United States.“2. The administrative practice of the Superintendent of Public Instruction and the Board of Education in the implementation of section 60246 and section 60315 of the Education Code provides no official involvement of the state which has the direct, immediate and substantial effect of promoting religious purposes nor does it involve the expenditure of public money for the direct benefit of any sectarian or denominational school or any school not under the exclusive control of the officers of the public schools, any benefit to such schools being both indirect and incidental and therefore does not violate Article 16, Section 5 or Article 9, Section 8 of the California Constitution.” (Conclusions of Law Nos. 1 and 2, 2nd trial.)The second trial court found (Finding of Fact No. 11), that, in Ohio and Pennsylvania where textbook lending programs have been upheld after attack under the First Amendment and state constitutional provisions similar to the California Constitution, the administrative practices are similar to the one employed by the California Department of Education.The court also found that the administrative practice involved: (a) has not converted the program into a sham and a subterfuge under which there is being accomplished indirectly what cannot be accomplished directly under the Constitution; (b) does constitute a loan of instructional materials to nonpublic school pupils and is not a distribution of textbooks directly to nonpublic schools; (c) does not constitute a public-fund subsidy of the religious parochial schools participating in the program and does not reduce the budget of each religious parochial school whose pupils receive textbooks by the same amount or the cost to the state of said textbooks, which said cost the parochial schools would otherwise have to bear in whole or in part; and (d) provides no official involvement of the state which has the direct immediate and substantial effect of promoting religious purposes nor does it involve the expenditure of public money for the direct benefit of any sectarian or denominational school or any school not under the exclusive control of the officers of the public schools, any benefit to such schools being both indirect and incidental. (Findings of Fact Nos. 12, 13, 14 and 15.)

JOHNSON,* Associate Justice. FN* Assigned by the Chief Justice of California.

ASHBY, Acting P. J., and HASTINGS, J., concur.

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