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Fisher v. Clackamas County School District 12

March 19, 1973

FISHER ET AL, RESPONDENTS -- CROSS-APPELLANTS,
v.
CLACKAMAS COUNTY SCHOOL DISTRICT 12 ET AL, APPELLANTS, BENNETT ET AL, INTERVENORS-APPELLANTS



Appeal from Circuit Court, Clackamas County. P. K. Hammond, Judge.

Ferris F. Boothe, Portland, argued the cause for appellants and intervenors-appellants. With him on the briefs were Black, Kendall, Tremaine, Boothe & Higgins, Portland, and George L. Hibbard and Hibbard, Caldwell, Canning & Schultz, Oregon City.

Herbert H. Anderson, Portland, argued the cause for respondents -- cross-appellants. With him on the brief was Henry H. Hewitt, Portland.

Schwab, Chief Judge, and Foley and Thornton, Judges.

Schwab

This is a suit in equity brought by plaintiffs taxpayers against defendants Clackamas County School District 12,*fn1 its board, clerk, and superintendent, to enjoin defendants from using classroom space in St. John the Baptist school (hereinafter "St. John's school") to conduct classes for students of the parochial school. Intervenors are taxpayers in School District 12 and their minor children who attend schools in the district. They have united with the defendants in

resisting the claims of the plaintiffs. From an order of the trial court granting in part and denying in part the injunctive relief sought, all parties appeal.

St. John's school is a parochial school maintained and operated by the Catholic church. Plaintiffs contend that the furnishing of teachers, textbooks, and teaching aids to the students of St. John's school constitutes a benefit to religious institutions in violation of Oregon Constitution, Art I, § 5.*fn2

Defendants and intervenors answer that the teachers and texts are not being furnished to St. John's school, but to two bona fide public schools using classroom space in St. John's school building; namely, Rowe Junior High Annex and Milwaukie Elementary Annex.

We find that defendants' contention is not supported by the record, and that the aid in question benefits a religious institution in violation of Oregon Constitution, Art I, § 5, as interpreted by Dickman et al v. School Dist. 62C et al, 232 Or 238, 366 P2d 533, cert denied 371 U.S. 823 (1962). Therefore, we do not reach plaintiffs' further contentions that the program in question also violates the First Amendment to the Constitution of the United States; constitutes the imposition of a tax for a special nonpublic purpose thereby depriving plaintiffs of property without due process of law in violation of the Fourteenth Amendment to the United States Constitution; and violates Oregon Constitution, Art VIII, § 2, in that the sums expended are not exclusively applied

to the support and maintenance of common schools in defendant school district.

The Catholic church operates St. John's school for grades one through eight within the boundaries of Clackamas County School District 12. The two programs in dispute were entered into by agreement between defendant School District 12 and St. John's school, and consisted of what defendants denominate a "shared time" program for seventh and eighth grade students of St. John's school, and a "released time" program for the fifth and sixth grade St. John's students.*fn3 The two programs are dissimilar in several respects, and will be described separately.

I

The "shared time" program was instituted in 1968. The seventh and eighth grade students in the program attend classes during seven periods each school day. In four of the periods their teachers are public school teachers under the employment and direction of defendant school district. The subjects taught by these teachers are language arts, social studies, mathematics, and science. Four classrooms within the St. John's school building are set aside for use by these four teachers. All ...


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