ACLU v. Hendricks Goes Back to the Secretary of Higher Education to Develop a Full Administrative Record

American Civil Liberties Union of New Jersey v. Hendricks, 233 N.J. 181 (2018).  In 2016, in a decision reported at 445 N.J. Super. 452 (App. Div. 2016), and discussed here, the Appellate Division invalidated as unconstitutional grants that the Department of Higher Education made to a Lakewood yeshiva and a Princeton seminary.  The basis for that decision was Article I, section 3 of the New Jersey Constitution, which provides, among other things, that no person shall “be obliged to pay tithes, taxes, or other rates for building or repairing any church or churches, place or places of worship, or the maintenance of any minister or ministry” contrary to the dictates of his or her conscience.  (Coincidentally or not, after not having confronted that provision for many years, the Supreme Court also addressed it in another recent ruling, discussed here).

The State sought and obtained review by the Supreme Court.  Today, in a per curiam opinion, the Court vacated the Appellate Division’s decision and remanded the matter to the Secretary of Higher Education to create a full administrative record in a contested case, as authorized by Rule 2:5-5(b).  The Court found the existing record insufficiently developed to enable a proper ruling on the constitutional issue.  Thus, the Court directed that the following questions, and perhaps others, be explored on remand: “(1) the sectarian nature of these institutions of higher education; (2) whether, in the setting of the curriculum and training programs of these particular institutions, the grant funds will necessarily be used in the ‘maintenance of any minister or ministry’; and (3) the adequacy of promised restrictions, or other curbs, against sectarian use of the grant proceeds at present and into the future.”

The Court’s opinion discussed its prior ruling in Resnick v. East Brunswick Tp. Bd. of Educ., 77 N.J. 88 (1978), to which the Appellate Division had turned for guidance.  The Court observed that Resnick involved a different issue than that presented here: the rental of public facilities by a religious institution for worship or religious instruction.  But the Court cautioned that Resnick‘s  “broad summary language … should not be misconstrued,” but must be “tethered to its holding, and its holding rooted the application of Article I, Paragraph 3 of the State Constitution to the facts of the case.”  That may portend an ultimate trimming back of Resnick if or when today’s case returns to the Court (or another case presenting similar issues comes before the Court), as predicted here.