Lemon v. Kurtzman

35 apply Accordingly, it and does is ordered that this jurisdiction eral appointment case remanded for the be to the District Court where County, Oklahoma, Drumright jurisdiction. A lack of for Creek avoid such tois citizenship may Division, diversity obtained and the this Clerk of Court is jur- necessary defeat federal directed take the action “manufactured” Drill- to so remand the Fitzsimmons Mecom v. same. isdiction. (Tenth Cir. ing Company, F.2d 28 1931), reversed U.S. Mecom case In the L.Ed. 233 the Court said: more than no comes to

“The case being, Oklahoma under

this: There ap- law, right a non-resident to have Betty Reardon, LEMON, Alton Priscilla J. parties administrator, pointed Worrell, Pennsylvania Edu J. lawfully applied Association, an Con Okla- interest cation ap- Association petitioner ference National was court, homa People, Penn Advancement Colored administrator, pointed the result Pennsyl Churches, sylvania Council of wrong- for the of action the cause Community Relations vania Jewish in him. vested ful death of decedent Sep Conference, United for Americans being citizenship as that the same His State, American aration of Church no there was of one of the defendants Pennsylvania, Liberties Union Civil court; right federal of removal Inc. the motive immaterial is v. obtaining appointment his KURTZMAN, Superintendent as David H. might qualification thus was he Instruction of the Common Public right to institute be clothed with Sloan, Pennsylvania, as Grace wealth action which could be so removed Commonwealth State Treasurer of the ground diversity of citizen- on the Anthony’s Pennsylvania, Rоman St. ship.” Archbishop School, Catholic Church p. School, High 233 at L.Ed. Ukrainian 239. Woods Girls School, Catholic Lutheran Germantown provides Okl.St.Ann. Academy, Academy, Akiba Hebrew guardian may ap Philadelphia Montgomery that more than one Christian Academy, pointed. permits and Beth Jacobs Schools Okl.St.Ann. § Philadelphia. appointment of a non-resident guardian request A. Civ. No. 69 1206. written mother, father was done United States District county proceedings. case court Pennsylvania. E. D. guardians qualified, as both Where Nov. herein, authority in them “the vested is Probable Jurisdiction Noted joint and to be exercised both to April gether.” Sargent Shaver, 69 Okl. (Okl.1918). See 90 S.Ct. p. 172 P. 445 There fore, co-guardian Tennessee litiga

necessary party plaintiff

tion of the minor Plaintiff’s cause of ac against Defendant, also a Ten

nessee resident. foregoing

For the reasons it citizenship

concluded that the diverse

necessary jurisdiction for federal (1) lacking 1332(a)

28 U.S.C.A. in this

case.

Hastie, Judge, Chief Circuit dis-

sented. Semisch, Grove, Pa.,

Donald A. Willow Philadelphia Montgomery Christian Academy. Henry Reath, Philadelphia, Pa., T. Independent Assn.

Schools. Judge, HASTIE, Before Chief Circuit TROUTMAN,

and LUONGO and Dis- Judges. trict Judge. TROUTMAN, District OPINION AND ORDER present enjoin suit seeks to alleged approval unconstitutional expenditure of State funds Pennsylvania Nonpublic Elementary and Secondary (hereinafter Act1 Education Act). the Education Since alleges unconstitutionality of a stat ute application, of state-wide this three judge panel has been convened. C. 2281-2284.2 §§ Jurisdiction is and based the First Fourteenth Amendments to the United Rights States Constitution and the Civil Act, Presently 28 U.S.C. 1343. before the Court are defendants’ to dis- motions standing miss for lack of for and failure to state a claim which relief can be granted. Henry Sawyer, III, Philadelphia, W. plaintiffs The individual are citizens Pa., Pfeffer, City, and Leo New York for taxрayers of the Commonwealth Lemon, Alton J. al. et Pennsylvania claims are Killian, Harrisburg, Pa., for John D. brought in capacity. Plaintiff Pennsylvania Council of Churches. Lemon, being in addition to a citizen and taxpayer, Negro Gen., parent Atty. is a Sennett, Harris- a child William C. attending public burg, Pa., Pennsylvania. school in for D. H. Kurtzman and G. organizational plaintiffs The asso- Sloan. persons ciations of resident Com- Joseph Skelly, Wm. B. Har- Ball and G. Pennsylvania monwealth of which “share High risburg, Pa., Archbishop for Wood objective separation a common for School Girls. opposition Church and State and the Gallagher, Jr., Clark James E. and C. public support use funds for the Jr., Pa., Hodgson, Philadelphia, for St. part whole or schools, of sectarian or Anthony's Church School Roman Catholic private policies other schools whose Catholic and Ukrainian School. practices, by purpose effect, or exclude Pa., Rappaport, Philadelphia, against per- Samuel otherwise discriminate Academy for religion.”3 Akiba and Beth sons Hebrew reason race Philadelphia. The Jacobs Schools of National Association Ad- Raymond Heuges, Philadelphia, Pa., People, (NAACP) F. vancement Colored Academy. plaintiff, Pennsylvania Germantown Lutheran which the Nonpublic Elementary Secondary parte Bransford, 2. See Ex Act, seq. Education P.S. et § 5601 L.Ed. (Supp.1969). complete The text of the appears Appendix A, Complaint p. infra. findings legislative NAACP, declara af of the its State Cоnference Legis Pennsylvania pur policy6 organization filiated, whose “is an lature pose racial has determined that a crisis exists seek the elimination is to elementary secondary education through judicial resort discrimination Pennsylvania rapid due to increases proceedings 5Each and otherwise”.4 population in costs and school and con organizational its asserts sequent demands more teachers and standing party-plaintiff to sue as a twenty facilities. It also was found that the instant suit. per elementary secondary cent of all Penn Kurtzman is the defendant Pennsylvania school children in fulfill sylvania Superintendent of Public In requirements of the Commonwealth’s approv responsible for struction who compulsory school attendance laws in ing funds under allocation nonpublic It has been further schools. Pennsylvania Act. Defendant recognized elementary secon is the Treasurer Com Sloan dary public education constitutes wel al will who monwealth of nonpublic fare educa approved seven locate the funds. tion, by providing instruction in secular elemen schools are sectarian defendant subjects, significantly contributes tary secondary institu purpose. this achievement Dis Eastern tions situated within the therefore, Legislature, concluded Pennsylvania, have con trict of who governmental duty it is a for the with the tracted Commonwealth achievement welfare purchase services of secular educational purpose by supporting purely secular Act.5 under the Education objectives nonpublic of education. operational Briefly, scheme I. Superintend permits of the statute into Public enter ent of Instruction Elementary and Nonpublic schools, nonpublic contracts7 Secondary Act. Education nonsectarian, for whether signed into purchase was of “secular educational Act Pennsylvania on of These “secular educational services”. the Governor law empowers “provid mean are The Act services” defined 1968. June subject”, ing Instruc- Superintendent of Public secular of instruction State “any subject defined as for while to contract secular non- presented from in the cur services” course which “secular educational public the Common- the Com public schools of located ricula of the schools any Pennsylvania fulfill include sub and shall not monwealth wealth require- ject expressing compulsory attendance teach matter Pennsylvania ing, worship law. or forms of or the morals ments under Complaint p. Schade, supra; 4. see also Commonwealth Perkins, 529, 21 A.2d 45 Pa. v. Pennsylvania 5. The Association of Inde- Apparently, (1941). for reason pendent per- (PAIS) Schools has been carry- adopting method for a contractual party-defendant mitted to intervene as a ing Education Act of the forth aims purpose arguing for the limited possible with the conflicts was to avoid defendants’ motion to dismiss. Pennsylvania Constitu- strictures 5602, Appendix emрloyed Regardless P.S. A method tion. infra. the Education funds under to distribute Pennsylvania 7. The has Act, reach result the constitutional we recognized contract the State changed. long today would not be As pur- with sectarian institutions effect of the chase of needed services. Schade reli- nor inhibits neither advances Allegheny County Dist., Inst. Pa. gion, satis- standard is the constitutional Furthermore, 126 A.2d 911 fied. recognized has also appear “appropriations” in 24 P.S. § such contracts are not All definitions A, organizations Appendix the Penn- to aid such under infra. purchases sought money sect”. All secular the amount of in reim- under Educa- Such services bursement. accounts shall sub- be ject tion Act are to cost” the “actual audit Auditor General. items three service: teacher operation Funds for the and adminis- salaries, ma- textbooks and instructional tration the Education Act are to be The Education further terials. only nonpublic drawn from the elemen- purchases limits all of secular educa- tary secondary education fund. in mathe- tional services matics, courses comprising monies this fund are foreign languages, modern exclusively proceeds taken physical science, physical edu- racing.11 racing State horse and harness payment cation9. As a condition Defendants, brief, have Superintendent Act, under the nonpublic formed the Court that ‍​‌‌‌​‌‌‌‌‌‌​‌‌​‌‌‌‌‌​‌​​​‌​‌‌​​​‌​‌‌‌​‌​‌‌​‌‌​‌‌‍1181 approve Public Instruction must all text- elementary secondary books ployed instructional materials em- having Pennsylvaniа, pupil popu- a total in the instruction rendered. children, 535,215 lation of and located addition, satisfactory student level Pennsylvania’s counties, 55 of now performance in standardized tests must under contract with Commonwealth years been attained within five pursuant to the Education Act. One date of the Act all educa- year’s performance has under contract tional services for which reimbursement and, September now been rendered sought must be rendered teachers 2, 1969, paid its first Commonwealth equal holding certification obligation. quarterly installment schools.10 standard teachers Payment discharge Act in II obligation may the contractual be made Standing after has been Individual and service rendered. Organizational 5607(a) part provides Section in relevant Plaintiffs that: pursuant The defendants have moved Any nonpublic seeking 12(b) plaintiffs’ such to Rule to com- dismiss plaint grounds reimbursement shall maintain such on the both or- the accounting procedures, including ganizational main- plaintiffs and individual separate tenance of standing funds and ac- lack to maintain the instant pertaining counts to the cost of secular suit under the clauses of the service, educational as to protec- establish that equal First Amendment and the actually expended support it of such tion clause the Fourteenth Amend- money equal service amount of to ment.12 Regu- December, 1968, regula- definitions “Rules and extensive Pennsyl- Implementing promulgated Superin- lations the tions were Nоnpublic Elementary vania and Secon- tendent of Public Instruction which fur- dary provide operating Act” ther delineate details and purchased procedures “Secular service Act and further elabor- solely fiscal, quality shall secular, consist under its con- ate subjects mathematics, courses trols. foreign languages, physical modern sci- standing, purposes 12. For we con- physical ence, and Definition education”. plaintiffs allegations sider under the Civil p. 8 at Rights Act, U.S.C. to be sub- equivalents equal protec- stantial to the 5604, Appendix A, See P.S. § infra. made, claims raised. have IVe analysis standing therefore, separate prohibits no 11. Section 5606 of the Act Rights Act, but rather use of raised under the Civil monies the Common- analysis in our wealth treat these contentions pay standing equal protection for services administra- under or tive costs under Education Act. clause. equal protection issues involved Organizational A. Plaintiffs instant case. organizational plaintiffs ground solely standing on the assert B. Individual Plaintiffs organizations they established are Lem- plaintiffs, Alton The individual maintaining purposes either Betty on, J. Wor- Reardon Priscilla separation of and State Church standing rell, assert under the preventing Noth discrimination. racial First Amendment clauses alleged respect ing further is with equal upon protection varied clause based fact of the instant case than issues allegations issue. as to each of status organizations share a common that these alleged оf this suit as in the outcome Initially,

interest that all individu- it is par may comport with their taxpayers plaintiffs of the Com- al organizational goals. funda Pennsylvania. ticular Plaintiff monwealth of recently standing, aspect as alleges paid mental an admission Lemon he has Court, is that articulated race track. Such fee to get seeking party financing “it focuses on provide the sole fees complaint court a federal before his * * individual other Education Act. The Cohen, Flast v. alleged payment plaintiffs 1942, 1952, 20 L.Ed.2d such admission fees. further The Flast decision plaintiff stand Lemon’s As to standing emphasis in noted that “the ing taxpayer the establish aas under problems party invok is on whether ment and free exercise clauses per ing jurisdiction ‘a federal court has Amendment, again note that we sonal of the contro stake in the outcome asserting party his the focus is on * * * versy’ the dis and whether however, respect, “[i]t In this claim. pute legal relations touches ‘the appropriate necessary look both parties legal having interests.’ adverse * * * issues the substantive ” * (cid:127)» * Cohen, supra, at Flast logical there is determine whether added) (Emphasis at 1953. asserted nexus between the status allegations sought adjudicated.” the basis of the to be On the claim S.Ct., they per Cohen, supra, forth in the set Flast v. organizational plaintiffs, Although we the Flast decision tain at 1953. personal perceive no stake or ad of a fed- itself the status can concerned challenge legal tаxpayer a federal verse interests of eral these par standing spending program establish- demonstrate their Regardless clauses of the ties the instant suit. ment free exercise Amendment, good organizations, that its of these consider the motives we may standing apply as requirements mere that case as to the fact the instant may taxpayers. Flast dictates in a in ac result which well to state decision taxpayers respective requirements stand- adverse the two cord or general “First, taxpayer organizations ing, namely purposes of that: these logical that establish link between we is insufficient must establish a believe legislative standing party type enact- to sue as an affected status 102, organiza 88 Consequently 392 at S.Ct. interest13. ment attacked” U.S. taxpayer plaintiffs “Secondly, at tional have failed to establish 1954 and standing between that establish a nexus as to both the and must advisory rendering organizational plaintiffs may result of an 13. The have ar- in the they permitted opinion gued matter in con- to sue on a constitutional should be attorneys general. private III of Article Constitu- here as travention States, Court, however, perceives precedent 219 United no tion. See Muskrat v. adopt theory 346, 250, persuasive 55 246 S.Ct. L.Ed. reason to this U.S. 31 or Indeed, (1911). do in the so instant case. precise remaining question status and the con- nature is wheth infringement alleged”. any plaintiffs stitutional er of the individual have 102, Flast, standing challenge at at 1954. U.S. 88 S.Ct. equal protection grounds. both elеments were satisfied since it was on It is al alleged taxing leged spending complaint generally that the powers government private of the federal were schools which have contracted or being specific used in con- will excess contract with the Commonwealth imposed upon intentionally stitutional limitations their under the Education Act by exercise the First Amendment. See discriminate in the selection of students segre U.S. 88 S.Ct. Since teachers or are de facto and/or applies gated by religion. the First Amendment to State or race It is further governmental powers, alleged Cantwell v. Con- the funds allocated necticut, U.S. 60 S.Ct. Commonwealth to these schools (1940), perpetuate sup L.Ed. exercise State Act will be used to taxing spending equally port practices limited. these and as such there is allegations precisely These made are action State involved. We will assume by plaintiff deciding Lemon in the instant case. aspect for the this We, therefore, standing alleged hold that has these he issue that these allegations standing proved hearing demonstrated facts could be on the challenge Nevertheless, the Education Act under plaintiffs merits. these standing challenge establishment and free exercise clauses lack the Educa equal the First Amendment. protection tion Act under clause of the Fourteenth Amendment. The other individual generally they taxpayers assert The Education Act on does its face Pennsylvania. However, they not use or as a race standard alleged guideline payment any may or tax which to determine who enter bring would af them within the class of into a contract with the Commonwealth. taxpayers. purport fected As such Doremus Board of the Act itself does not Education, any deny equal to make U.S. classifications to (1952); particular L.Ed. Murdock v. treatment to members of Penn sylvania, noted, previously race or As we requirement standing 87 L.Ed. 1292 Rather, these focuses plaintiffs allege they paid party personal have not affected and his stake litigation an admission fee to a race in the outcome of the at issue. require track to do because so would Plaintiff Lemon his asserts status pay Negro parent them re tax child in a ligion rights Pennsylvania. However, school in violation of con there allegation personal right is no science. The to freedom protected by per- of conscience is free asserts that Lemon his child sonally any alleged exercise clause of the First affected inten- Amendment segrega- tional discrimination or de condition other facto rights privileges upon allega- tion in the sacrifice these schools. There is no Verner, attempted tion that child freedom. See Sherbert v. Lemon’s 398, 1790, any 374 enroll at was U.S. 83 S.Ct. 10 L.Ed.2d these schools and (1963); Watkins, 965 or Torcaso v. 367 denied admission because of re- race 488, ligion. plaintiffs’ 1680, U.S. 81 S.Ct. L.Ed.2d None of the other al- 6 982 (1961). Although legations privilege point any interest, parental to the to аttend otherwise, may a race track or asserted and its con which has been or here alleged discriminatory apparent to nection free exercise is less affected the cases, allegation practices. than in either of the cited The absence an above recognize personal rights purpose parties we it for will the that the these seeking establishing standing the of these are affected has the net effect of plaintiffs. grievances hypothetical of oth- to raise

43 (1937); 57, 466, injured 646 personally 58 S.Ct. 82 L.Ed. ers who Standing Pauling McElroy, U.S.App.D.C. requires 107 v. such discrimination. 372, (1960). plaintiff 252, We himself be 278 F.2d 253-254 that least the allegation Flast, not a personally supra, 392 the asserts believe that affected. 110, such of law and as also fact but conclusion 88 1942. See S.Ct. U.S. testing purposes of for of America v. not admitted United Public Workers sufficiency Mitchell, 75, complaint. 556, 91 U.S. 67 S.Ct. the (1947). question presented rele- is wheth- Race is indeed a of law then L.Ed. 754 protection purpose primary equal to er or effect the vant consideration the However, Act on its face our does Education issues. research person necessary was admin- in or in the its disclose case which a effect discriminatory challenge permitted inhibit istration advance practices, ligion.15 policies him- or laws where he practice.14 object self was not such The First Amendment the United Consequently, as none of the individual provides “Con- States Constitution

plaintiffs alleged personal stаke have gress respecting shall make an no law they case, in instant failed religion, prohibiting establishment pro- standing equal establish * * free exercise thereof tection clause. originally placing This limitation a re- governmental striction on federal III. in involvement has since been and Free Exercise Establishment judicially incorporated the Four- into represents teenth and now Amendment the defend consider now We action. as as Federal plaintiffs’ bar well ants’ motions dismiss Connecticut, 296, Cantwell v. 310 U.S. complaint for to state a claim failure 900, (1940). The 84 L.Ed. 1213 granted. S.Ct. In relief can be meaning scope of the First Amend- accept posture true of the case we several times allegations ment have been elaborated well-pleaded of fact Su- plaintiffs’ of the United States complaint. decisons al preme involving lege educa- Court areas purpose as a fact apposite to instant case primary tion. Most Act is effect of the Education Supreme decisions Court’s purpose of con to aid For Education, sidering Everson v. Board of 330 U.S. is ar the motion to dismiss it (1947) 1, 504, gued purpose allegation L.Ed. 711 67 S.Ct. Allen, v. and Board of Education Act effect of L.Ed.2d 1060 complaint S.Ct. deemed admit must be Everson, well-pleaded ted. it is true that While Jersey au- complaint held that a New statute which ad facts are deemed parents purpose testing reimbursement suf thorized State mitted its attending both ficiency, does in bus fares children admission legal parochial not vio- schools did clude drawn from these conclusions of the First Newport Shipbuilding late the establishment clause facts. News & Schauffler, Dry Court noted Dock Amendment. v. 303 U.S. Co. respect Wilmington g. specifically, e. ‍​‌‌‌​‌‌‌‌‌‌​‌‌​‌‌‌‌‌​‌​​​‌​‌‌​​​‌​‌‌‌​‌​‌‌​‌‌​‌‌‍See Park More Burton v. clause, paragraph ing Authority, 715, 716, establishment alleged (1961); 6 L.Ed.2d 45 Sim Hosp., (1) the advance- “has its kins Moses H. Cone Memorial cert, (2) (4th 1963) religion”, “finances Cir. de ment 323 F.2d blending participates of sectarian 11 L.Ed. nied 376 U.S. 84 S.Ct. “provides (1964) ; education”, (3) 2d Board Deal v. Cincinnati and secular cert, (6th Ed., Cir.) funds de financial out of State 369 F.2d 55 direct aid (4) schools”, its “has as L.Ed. nied 389 U.S. primary (1966). re- advancement of 114 effect 2d ligion”. 44 prohibits permits the states which

establishment clause the Establishment Clause supporting setting up Supreme a from church Court stated: religious activities may The test be stated as follows: 16, stitutions. 330 U.S. at However, 67 S.Ct. purpose primary what are the ef- Court further observed fect of the If enactment? either may hamper citizens that a State not the advancement or inhibition of re- receiving the benefits ligion then the enactment exceeds the excluding religions legislation by welfare scope legislative power circum- from its The First benefits. Id. Amend- scribed the Constitution. That is “requires ment a neutral state to be say that to withstand the strictures groups in its relations with of the Establishment Clause there * * believers and non-believers legislative purpose must a be 18, at at bus- U.S. S.Ct. 513. As and a effect neither ad- sing generally category was in the same religion. vances nor inhibits 374 U.S. government provided as оther services 222, at at S.Ct. ordinary parochial schools such as Although the results the Everson and police protection, sewage and fire dis- provide Allen decisions were to some sidewalks, posal, public highways and parochial measure of indirect aid to aid, measure of as benefited transportation schools in that to receive children, constitutionally could be ex- religious instruction was facilitated and breaching tended without the standard parochial that the schools’ were no funds government religion neutrality toward longer required certain embodied in the First Amendment. books, such results did constitute a recently, Most Board neutrality breach of State towards re- Allen, 236, 1923, v. U.S. S.Ct. ligion. applying pri- (1968) 20 L.Ed.2d tained, the Court sus- mary effect test to the New York stat- objec- over Amendment Allen, ute in Court reasoned tions, legislation in New York which express purpose “[t]he quired the State to free lend textbooks Legislature was stated New York charge private to all children in sec- op- furtherance tarian and nonseetarian schools. * * portunities young. available to the recognized later that “Everson and merely The law makes available cases have shown that the line between general pro- children the a benefits of neutrality religion sup- state and state gram to lend school books free port religion easy to locate. charge.” 392 U.S. at 88 S.Ct. sepa- ‘The constitutional standard Although a distinction between prob- ration of Church and Statе. bussing recognized, and books was since lem, many problems in like constitutional the latter used of re- as vehicle degree’. law, is one Zorach v. Clau- ligious teaching, the Court noted son, 343 U.S. [72 language of the New York statute nei- L.Ed. See McGowan 954] permitted ther authorized nor loans or Maryland, 366 [81 S.Ct. distributions literature. (1961)”. 6 L.Ed.2d The Court Id. 393] not-willing Properly, the Court was prior re-examined its decisions and ar- assume that New administrators York’s pragmatic standard, first es- ticulated statute; would violate the terms Abington poused in School District v. accordingly, prin- it was held that Schempp, 374 U.S. cipal neutrality was and the satisfied 10 L.Ed.2d (1963), test primary effect of not to the statute was legislation designed to achieve advance See objective through religiously affiliated 245, 88 S.Ct. 1923. distinguish educational institutions. To between forbidden involvement of the argued It is here Penn State with sylvania’s pur- and those contacts has its Education Act

45 history of Act search of Education primary effect the advancement pose and legis- Pennsylvania’s purpose intent” of the “true religion. that the We believe findings legislative of the lators. The can found clear- Act be of the Education lightly set aside. Legislature de- State are to be ly has its The face. connection, Frankfurter Justice Mr. purpose of the clared that has observed that: promote the welfare “to is Pennsyl- people of the Commonwealth private and unformulated [T]he edu- promote the secular and “to vania” legisla- may upon fluences which work Cоmmonwealth children of the cation of judicial open probing. tion are not attending nonpublic from the “The of this court decisions Support for this declaration schools”. beginning support lend no whatever legislative specific purpose is found may judiciary assumption findings point percentage which power of lawful restrain the exercise school-age Penn- educated children wrongful assumption that a on the purpose rising institutions, sylvania’s private pow- caused the or has motive education, popu- increased cost McCray v. United er to be exerted.” qualified more lation and demands 769, States, 27, 56 S.Ct. 195 U.S. [24 adequate Fur- facilities. teachers 776, “Inquiry into the L.Ed. 78]. recognized Legislature thermore, also may move [a which hidden motives pub- potential burden on the financial power legislature] con- to exercise a long-range impairment treasury lic stitutionally is it be- conferred private may if result which education yond competency of courts.” present longer bear their institutions no Mary- (Citations omitted) v. McGowan plaintiffs educational burdens. land, at 1158. at S.Ct. majority argue vast that because the na our which will contract The education properly quite services has been of secular educational tion’s children recognized a Education Act are Court as under the schools, operative subject legislation proper effect enacted Coch public of religion. must be a interest. the instant statute furtherancе accept plain- Edu We cannot v. State Board of ran cation, Louisiana argument. a state “The tiffs’ fact 281 U.S. S.Ct. satisfy need, law, public passed co- (1930). is neces neither L.Ed. 913 sary It personal permissible constitutionally desires of incides nor directly pursuits cer- fol require is individuals most affected that educational * * * inadequate tainly only reason learn institutions lowed erroneously say legislature ing; rather, goals ef has educational private appraised through v. fectively need.” Everson satisfied Sisters, Society at of Education, Board 380 U.S. education. Pierce purpose of the statute L.Ed. 1070 S.Ct. at 507. 268 U.S. S.Ct. corollary State’s] that “[the on its indicates a sensible face As considering education, broadly; its meth- interest Pierce decision and compul od, satisfying comprehensive. its interests Individual interest State’s through private sory interest edu are aided the common education laws safeguarded”. institutions, ob at S.Ct. the Allen Court 392 U.S. cational urge that we served : legislative history examine satisfy inter- its must [I]f exam- contend that such an through est in secular education intent the true ination will disclose that schools, private it has instrument of Pennsylvania legislators was proper manner in interest in the not, however, feel aid We do perform their secular those schools necessary appropriate function. legislative at 1928. re-examine instant case to recognize “private We that education ment. The Education Act on its face au- * * * significant playing and thorizеs the Commonwealth to contract raising valuable role in national levels services connected knowledge, competence, experience,” strictly educating and secular function Pennsylvania’s at at and U.S. 88 S.Ct. school children in public’s private subjects that on edu mathematics16, reliance physi- secular suggests adequate cation ed foreign that secular cal sciences17, modern lan- being provided guage18, ucation in these physical education19. That recognize, schools. further We as did the Commonwealth must not be involved Supreme Allen, religious in in that functions sectarian “State’s interest in clearly education would educational institutions estab- sufficiently by served strictly reliance lished the nature and kind of teachings acconvpan[y] secular subjects that re secular selected ligious training” nonpublic in schools. itself and the controls and restrictions placed Fur 88 S.Ct. 1927. operation the statute’s thermore, “religious regulations promulgated we consider that thereunder. goals, pursue in two Thus limited restricted we cannot education”, struction and secular that hold the statute advances U.S. at 88 S.Ct. at and we either in or effect. may Moreover, believe that applies aid the secu the statute all non- lar function rather than schools both sectarian non- private function may apply institu sectarian. itAs to sectarian institutions, tions in the interest education we concur with the proper par Allen, within confines Court’s supra, and without statement in * * * ticipating agree in in ‘‘we a forbidden cannot involvement either religion proscribed by the First Amend- teaching in sectarian school is Regulations 16. In languages to the Education Act related classic such as Latin or mathematics is defined as follows: Greek. 12. “Mathematics” shall mean the Foreign languages” 13. “Modern ais operations, science of numbers and their collectively applied study term interrelations, combinations, generaliza- pronunciation, grammar, composi- tions, space abstractions, and of reading foreign languages tion and configurations structure, their contemporary use, in as contrasted with measurement, gen- transformations, and ancient, “dead”, that of the or lan- study It eralizations. includes the guages commonly called the classics. number, space, patterns. and structural “Physical 19. Branches of mathematics include arith- education” refers part metic, algebra, geometry, trigonometry, program pro- of the school calculus, probability, guidance analysis, through vides statis- and instruction physical tics, logic, theory. designed number activities to meet the pupils developing phys- needs of Physical Science is defined as efficiency skills, ical and, along and recreational “Physical organized science” is phases with other knowledge physical composi- about curriculum, provides oppor- maximum phenomena tion and structure of tunity growth physically, mentally, process relating quantitаtive or emotionally, socially. It includes qualitative description physical phe- adaptive physical education for those time, space, mass, nomena related to or pupils who, reasons, because of health concepts derived in a manner that is participate regular are unable to agreement properties with all observed “Physical classes. education” does not “Physical phenomena. of these science” music, consist of instruction in driver chemistry, includes basic sciences of education, military training, or extra- physics, astronomy, physical geology, mural interscholastic athletics and/or oceanography, meteorology as well sports. Health instruction is not con- specialization as the areas of derived physical sidered education. from these. Physical education does ont include sex foreign languages 18. Modern does not in- education or other areas which teaching religiously clude the of traditional church deemed oriented. significant public performing serv- processes ligious great educating training ice numbers school- intertwined are so necessarily age children, makes the State furnished to stu secular textbooks private education. Of interested instru public are fact dents necessity religion.” (Em teaching therefore: mental in the added) phasis U.S. at indi- As the interest State’s at 1929. comprehensive, vidual more becomes re- its and the concerns concerns its nar within Administered ligion perforce overlap. codes State primary nor confines neither the row touch the and dictates of faith operative necessary effect of the statute at human Both aim same activities. religion. quite It unlike is advances respective good, views pub tax-supported situation State .where good they con- for man what is buildings, and teach ‍​‌‌‌​‌‌‌‌‌‌​‌‌​‌‌‌‌‌​‌​​​‌​‌‌​​​‌​‌‌‌​‌​‌‌​‌‌​‌‌‍ facilities lic school they may No cur or conflict. consti- a forum and means are used as ers command leaves tutional which religious doctrines the dissemination ligion quality of can free avoid pupils on occasions when at times Maryland, interplay. 366 McGowan v. compulsory subject at to the State’s 1153, 1101, 420, 461-462, U.S. 81 S.Ct. People of of Illi laws. tendance (1966). (Separate 1154, 6 L.Ed.2d 393 of Educa v. Board nois ex rel. McCollum Frankfurter). opinion of Mr. Justice 461, tion, 203, 92 L.Ed. 68 S.Ct. Abington (1948); v. School District in educa- That such a common interest Schempp, 83 S.Ct. U.S. is if not essential exists desirable (1963); Engel Vitale, 370 L.Ed.2d so- of a free the continued existence 8 L.Ed.2d U.S. S.Ct. ciety is, long function so State’s contrary, is the statute On the carefully here, defined, limited and subjects limited not but secular opposed sec- confined to secular as specific to a number of secular limited tarian do not view matters. We subjects peculiarly with and unconnected requiring abso- an Amendment as teaching religious to the unrelated necessarily separation over- between lute limited statute is further doctrines. The lapping in the education interests purchase of services and confined to the school-age require such To children. Engel Schempp at cost. Unlike a standard assume that the State would position of com maintains a here religion mutually exclusive exist neutrality. plete religious In Zorach v. spheres having sharply no defined Clauson, U.S. common natural interest in the education approved L.Ed. State’s Court youth. would not of our Such a view encouragement “religious instruction” police comport with extension of even religious cooperation au its “with governmental protection or or other fire thorities” Here the Education public interest. services encourage go does not so far as recog religious teaching persuasive matter. We Nor do we find argument separation of nize di Church the child must be the government beneficiary in the non-establishment funds State embodied rect concept. self-defining principle support is not a which secular education. Such increasing approach place national concern sub The form would over society, coupled in our with education in that constitutional result stance private public depend upon awareness that minute distinctions would respects religious Zorach stated: it then nature encourages religious people When the state of our and accommodates cooperates religious spiritual truction or with au- needs. service to their * * * by adjusting thorities schedule needs, it fol- events For lows the best our traditions. society The child technicalities. principle. Consequently, establishment generally certainly im- plaintiffs’ benefit we complaint will dismiss the provement of the secular education under the establishment clause. regardless child receives of whether allege Plaintiffs also in their payment him is a direct or loan to there the Education Act on its face and parents or his to his school necessary operative in its effect denies constitutional teachers. In our view the them the free exercise With wholly result should and cannot de- respect plaintiffs, to each of the “ pend upon identity payee. alleged against [i]t put use funds are must conscience each of the to be concern.21 by operation taxing forced power contributing The mandate the First Amendment propagation into neutrality respect or for the of sectarian teachings, practices. alleged Ed- beliefs schools”. It is also the Act religion employ ucation not compulsory Act does “constitutes taxation for the religion prerequisites support re- religious its to of standard. educa- government ceiving pur- for funds the tional institutions.” services, we chase of secular educational respect With to the latter believe, designed the maintain allegation, as we have decided that the neutrality required by the First Amend- purpose primary Education Act in argued the it ment. While effect not does advance or rе consequential of instant stat- result the ligion, taxation, assuming arguendo máy indirectly nonpub- ute be to benefit compulsory, it sup is is for the schools, purpose lic sectarian the port religion. Consequently, of this al isAct effect of the Education legation respect must fall. With such an incidental secular nature and allegation, former it is of infringe upon benefit is not sufficient the free clause exercise the First principle of the the non-establishment liberty religious Amendment “to secure by First Mr. Amendment. As was noted by prohibiting any individual in Harlan, concurring in Board Justice by vasions authority”. thereof civil Allen, supra: Education v. Abington School Township District of v. U.S, governmental Schempp, 223, the contested [W]here 203, 374 1560, activity achieve non- calculated is 10 L.Ed.2d 844 religious purposes allegation otherwise within There no plaintiffs’ in the competence State, complaint particular and where what their activity does not involve the State beliefs are nor how the Educa significantly directly by Act, ‘so authorizing give rise services, as to realm secular educational coerces them * * *, practice influences divisive of their In dis * * * missing it is allegation of freedom’ inhibitions the free-exercise Allen, clauses forbidden supra, Board of Education at Supreme the First Amendment. U.S. Court stated: S.Ct. at Appellants also contend that Admittedly, easy one is not the line offends the Free Exercise Clause However, to draw. we Edu- believe the However, First Amendment. ‘it n neutrality necessary cation Act is consistent with in a free exercise case and comes within towards one show the coercive effect permissible spirit of the non- operates against limits the enactment as it implicitly in Allen individual students. As such this recognized conformity this when it noted the secular use was in New books on loan under York’s Constitution. at 244 U.S. n. parochial were ordered and stored S.Ct. 1923. schools but were furnished for the use religion,’ Elementary Secondary practice his him Act, Schempp, 19, 1968, Abington 109 of June P.S. District v. No. School seq., construed 5601 et on its face S.Ct. [83 § in U.S. * ** light allega- appel- factual of certain 844] 10 L.Ed.2d present complaint which the New tions of the lants have not contended way as must on motion them be deemed correct law in coerces York complaint, practice of their dismiss violates individuals ligion. Establishment Clause Amendment, applicable to the as made states Amendment. the Fourteenth allegations are also Since these essential provides shall lacking failed state this case pay applying “nonpublic” funds to to state a claim under the free-exercise and, elementary secondary to re- Amendment clause the First having therefore, rendered them be dis- imburse will through disposition “secular teaching service” of our missed. view namely, subjects; dismiss, we need certain defendants’ motions foreign mathematics, languages, remaining modern not consider the motions. physical physical science and education. to school is ORDER Reimbursement authorized salaries, сost of teachers’ November, now, day And this 28th materials textbooks and instructional ordered that: after to the extent that such costs 1. motion to dismiss the Defendants’ by actually in- the been incurred complaint organizational plain- to the as stitution. standing tiffs of issues for lack all great granted. alleges complaint the herein that raised is eligible majority of sub- the schools 2. Defendants’ motion to dismiss the sidies under Act are affiliated the complaint plaintiff for lack as to Lemon of control or direction under the standing religious of under clauses the respects are sec- churches or in other of is the First Amendment denied. teach re- tarian which schools schools 3. to the Defendants’ motion dismiss purpose ligion primary and that the complaint remaining as to the individual principal of the Act as well as the effect Betty plaintiffs, Priscilla Reardon and religious institutions. is thus aid Worrell, standing J. of as tax- for lack present the purposes motion For of the payers is under the clause establishment majority opinion properly accepts as fac- granted. allegations tually complaint's correct the the Defendants’ motion to dismiss religious charac- as complaint plaintiffs to individual as ter of schools intended most standing for lack of Reardon Worrell receiving actually state receive and under the free-exercise clause is denied. However, grants-in-aid the Act. motion to dismiss Defendants’ allega- opinion as that characterizes an cоmplaint to all as individual law, ac- tion of refuses therefore standing equal pro- under the lack correct, allegation cept granted. tection is clause principal primary purpose effect motion to dismiss the Defendants’ institutions Act is thus to aid plaintiffs to for failure of majority all Instead, seems to state can a claim which relief purpose question and ef- of the view the granted granted. is decla- as foreclosed fect legis- statute itself that the rations Judge (dis- HASTIE, Chief Circuit promote purpose welfare is “to lative senting) . people Commonwealth” of the promote education question decide “to secular basic we have to Pennsylvania Nonpublic Penn- whether children the Commonwealth sylvania attending nonpublic providing any schools”. elude the state from as- agree.1 sistance, I indirect, this But even With cannot no matter how religious inquiry purpose majority if as to and effect should institutions. As the opinion correctly indicates, religion’s be confined examination lan- in- guage statute, pub- scheme of the I can- terest and the interest state’s good necessarily overlap. lic not avoid the conclusion that In con- temporary experience and effect of the enactment churches and other sup- nonpublic help characteristically, institutions aid, plying great credit, them with needed financial to their conceive their promotion ministry while mission whatever and undertake anticipated through welfare as a result various additional social means worship. pro- is at an assistance best fundament of justifi- viding consequence needy cidental claimed of shelter and care for the aged, cation of the youth, state’s action. education for and other community social services are point It merits mention at this important part organized deemed an statutory majority both the text Yet, church work. in the modern wel- opinion concept make much of the state, long fare similar activities have the state “contracts recognition important gov- since won Actually, services”. responsibilities, ernmental functions and phrase descriptive is not statu- performance discharge from the tory nonpublic scheme. A like institutions with financial aid under Act need desires undertakings may derive incidental bene- submit, pre- do no more than on a form Thus, sup- fits. where the state has state, application scribed des- plied transporta- all school children with ignating portions of its curriculum books, tion arid sectarian educational en- for which it wants assistance. The State terprises by being indirectly aided Superintendent agrees of Education then they relieved a financial burden which the state will do what the statute might obligated otherwise feel to bear. requires, namely, pay the school such Education, Everson v. Board of sums as Act No. 109 it re- entitles 330 U.S. 67 S.Ct. 91 L.Ed. ceive. This the so-called “contract”. is Allen, 1968, and Board of Education v. enlarge The school need not undertake 20 L.Ed.2d its curriculum or to increase its enroll- recognized Indeed, ment. it can its enroll- decrease preclude Constitution does not a ment and diminish its curriculum and providing public state from thus services qualify subsidy. merely still for state It directly people merely to its because such goes through prescribed procedure a incidently religious services aid insti- asking proving for aid and later it However, tutions. these do not cases expenditures has made reim- suggest permits the Constitution Act, bursable under the without ever ob- public religious financing direct of a en- ligating anything itself to do for inor terprise merely because such aid also buys the interest of the The state. state benefits the state. no services and school sells none. The artificial characterization It present is unrealistic view the procedure “contracting for secular merely subsidizing statute as in- help educational services” does not solve only incidentally struction and thus our problem. constitutional benefiting religious by re- institutions Certainly leasing religious pur- their Establishment Clause funds for poses. pre- primary purpose Amendment does not for which disposition summary allegations 1. This is not a on of the and our judgment posture judgment potentiality proof where the factual as to the case is established affidavits and thereunder. exhibits. Here is decision controlled ligious organizations, as well as subsi- offer a formulate sectarian parts of apart from dies for of the “secular” curriculum comprehensive religious. not included education system is public school present program of- statute. If the constitutional Through a total grants religious all such cases to state environ- bar separate fered a removed, it is reasonable inculcate should be ment, serve sectarian schools continuing anticipate political contro- in children doctrine and reinforce community versy every state and local tenets precepts derived from moral public necessary extent funds whether to what not It the church. is large granted whether, are to subsidize of this fulfillment a quire for range every activities religious purpose number and a broad course religious organizations. religious taught Leaders overtones. is organized total of various devout members consideration crucial duty religious sepa- groups teaching a see as their will program is offered in church or to seek such aid religious sect rate environment govern- re- local appropriate and to insist that state and achievement better liberally re- ment to their sec- ligious contribute objectives. the state When Legislators, govern- any part enterprises. tarian imburses a sectarian elec- ment such a teach- executives and candidates costs of of the curricular sup- judgment other ing directly tive office whose program it finances higher purse religious enterprise. Consti- claims merit ports a priority anticipate political opposi- subsidizing re- сan tutionally, of a way essentially ligious enemies In this enterprise dif- tion as faith. pari politics will become payment funds a ferent materia. treasury church. Such into the in a

prohibited the state involvement of escaped much of the So far we have undertaking religious validated antagonism political divisiveness and enterprise merely because differences about controversies incidentally state itself relieves the ligious public financ- matters because many educating children. cost of religious organiza- ing of activities of important the fore- pro- than more Even tions has been understood to be going analytical con- distinction are hibited Professor our Constitution. significant consequential stitutionally pointed perceptively has out Paul Freund present statute Kennedy distinctions betwen the to avoid that President was able Everson taking and those political position upon considered issues case, AUen in this by relying upon cases. au- character those in Everson much than more thoritative constitu- decisions Allen, religious groups or- religion and separation invites tional of state and ganizations politically and involves Freund, act controlling. Aid to as Public intrusively re- in of the affairs Schools, 1969, state Parochial 82 Harv.L.Rev. ligious present institutions. 1692. But if statute constitutional, no I see held pointed already out It has been escape from the evils attend part only of sectarian schools are widespread intermingling pervasive and activities, many complex of of them politics and languages teaching “secular” science, is the in- physical The other side of the coin modern which evitability religious fi- intrusion into of state churches institutions organized hospitals, affairs of in the ad- Charities, nance and conduct. present community the ministration statute. As and homes centers already justifying stated, aged examples. im- it is the infirm are familiar perative all, most, if church- theory Act No. would validate sponsored unavoidably sub- and controlled education 109 also validates state inculcate enterprises re- formal serve to education shall for all such sidies youthful examples and reinforce in minds sec- instructive of sectarian orien- precepts teaching de- tarian moral appropri- doctrine and tation in materials ately teaching rived from tenets of the church.2 used of “secular” subjects appro- a mission schools with such in church-related schools. The priate, practically unavoidable, religious that ad- extent to which orientation policies practices subjects mission appropri- reflect a will become an preference subject sug- inquiry for enrollment of children of ate of state is also faith, though gested sponsoring by interrogatories not neces- sarily Yet, excluding all others. once suit have addressed financing joins the state example, such educa- defendant schools. For tion, position equalitarian the mandated churсh-related schools have been imposi- of the state must in state result asked to disclose the extent to which strictly non-discriminatory precepts ad- are involved in teaching subjects; mission standards consistent with of secular whether duty,3 appropriate subjects clerics, whatever teachers of sacrifice such are religious objectives religious symbols result. I can- what materials and square displayed such into used or state intrusion the schools con- other, ligious sepa- concept affairs nection with activities than re- ligious ration of church and state which ceremonies. It difficult imagine implements. type Amendment of intrusion the state religious more community offensive to a The same is cur- true in the matter pervasive than monitoring such in- riculum. If is to the state finance vestigation of instruction and academic teaching parochial “secular” and other organization purge in order to the secu- schools, church-related must state religious lar areas of the curriculum of power responsibility have the Yet, just orientation. it is to in- monitoring curriculum and instruction Pennsylvania trusion teaching to assure that in these state- opens door, by necessary implica- if supported areas is not so oriented as to go tion it does not farther and mandate inculcate sectarian or tenets or entry of state overseers as the Indeed, expressly doctrines. No. adequately means which the state can provides approval for stаte of text books continuing check the initial teaching in all materials subsidized eligibility particular “secular” in- substantiality schools. The of this financing.4 struction for state volvement is indicated Mr. Justice Douglas in Goldberg, the course his Mr. dissent Justice in School Dis- Allen, Abington Board Education v. trict of Township Schempp, 236, 258-262, 203, 307, 20 L.Ed.2d 1560, 1616, where he elaborates numbers 10 L.Ed.2d 844 and Mr. Jus- Pfeffer, Church, State, 792; L. See and Free 1 L.Ed.2d Kerr v. Enoch Pratt dom, 1953, Library, 290-300. See also Free Rev. S. 4th Cir. 149 F.2d Woywood, Law, The New Canon imprimatur Spell provision of Most Rev. Francis It is difficult how see man, Archbishop York, of New others Fair Educational (1940), quoted Opportunities in Everson v. Board of Act that sanctions 1, 18, Education, 22-23, policies 330 U.S. discrimination in admission and 504, J., (Jackson, practices S.Ct. senting) 91 L.Ed. schools, dis of sectarian 24 P.S. § 5004(e), validly . applied could to sec- tarian schools that receive financ- Newton, 1966, v. Evans 382 U.S. Cf. ing under Act No. 109. 296, 486, 373; 86 S.Ct. 15 L.Ed.2d Bur Wilmington Parking Authority, ton explicitly v. 4. Act No. 109 restricts state aid 1961, 715, 856, any 365 U.S. 81 S.Ct. 6 L.Ed. to courses which “shall not include 45; Cooper Aaron, 1958, subject 2d expressing religious v. 358 U.S. matter teach- 1, 1401, 5; 16-19, ing, worship 78 S.Ct. 3 L.Ed.2d or the morals or forms any v. Board Directors sect.” City 1957, Trusts, 230, 353 U.S. S.Ct. agree Finally, I ma- while with the Harlan, in Board tice plaintiff jority the 236, 249, Lemon does and that Allen, 88 S.Ct. 392 U.S. plaintiffs do not have expressed other individual have both 20 L.Ed.2d alleged standing litigate to violation rationaliza- a sound I to what believe on basis of the Establishment Clause violated First Amendment tion that the by requirements enunciated “involve will state action which Supreme Cohen, significantly directly in the in Flast v. Court state so give L.Ed.2d rise to 392 U.S. of the sеctarian realm 947,.my reasoning in- different very is somewhat influences and those divisive that, except and leads the conclusion which both of freedom hibitions pre- Lemon, plaintiffs lack for the individual First Amendment ‍​‌‌‌​‌‌‌‌‌‌​‌‌​‌‌‌‌‌​‌​​​‌​‌‌​​​‌​‌‌‌​‌​‌‌​‌‌​‌‌‍clauses of standing the conclu- under the Free Exercise Clause I am unable avoid clude.” clearly undertaking under the even more than Estab- author- sion that the state lishment intoler- Clause. would thus ized Act No. 109 of the ably the realm the state in involve Cohen, In tax- income Flast v. federal sectarian. payers alleged expenditure of that Elementary and federal funds under that some considered It must also be Secondary Education Act eligible Act for aid under of the schools finance in sectarian schools instruction pri- appear to be nonsectarian No. materials include re- do not schools which vate reli- use in such violated schools pro- ligious training in their educational gion First Amendment. clauses of the grams. Obviously, Amend- declaratory taxpayers’ bill for a aid to not debar state ment does judgment injunction dis- and an was allege plaintiffs However, schools. by three-judge missed district court only statistically prove that and seek standing. Supreme lack of eligible minority very of the small reversed, holding plaintiffs had that the that of this character schools are logical requirements satisfied the of a history legislative this fact and the tax- connection between their status as payers pri- to show the statute combine mary purpose legislative type both “the legisla- effect of precise attacked” and “the na- enactment think tion is schools. I to aid sectarian infringement ture of the constitutional plaintiffs permitted to the show, should be alleged”. 392 U.S. at 88 S.Ct. they can, the inclusion of if princi- 1954. The Court relied private insti- nonseetarian schools pally finding on its that the Establish- eligible for is so minor tutions state aid designed ment Clause was taxing to limit the statutory aspect an incidental Congress spending powers scheme that it cannot validate enact- spécifically wheth- declined decide ment. taxpayers’ er the claim free exercise It to consider the claim remains standing. alone would confer subsidizing nonpublic the defendant n. at 104 by the statute schools as authorized pro- case, deny plaintiffs equal ultimate would source agree challenged payments I the ma- funds tection of jority laws. source, organizational that the No. challenge legisla- standing races, lack admission tax harness on 15 P.S. (1967), thoroughbi’ed tive scheme under either the First § races, 1969). Equal (Supp. Amendment or Protection P.S. agree alleges paid Clause. I also that no individual Plaintiff Lemon that he has plaintiff alleges any race, discrimina- admission fee to a harness practiced cluding of the defendant the tax. All three individual plaintiffs allege against or his children in a him affects “[i]t way standing give religious to that would him conscience to be forced [their] litigate protection by taxing equal operation power the issue. of the into

cоntributing propagation sought, of reli- in to the terest the rather than relief gion support only of sectarian an interest be if or that will realized ap- judicial majority opinion enjoining expenditures action schools”. allegation supported by program parently particular to latter a tax construes Lemon, that, plaintiffs subject except in- are shall to mean not general plaintiffs from result in refrained a in tax dividual have decrease attending Therefore, so because to do the races burdens. individual support parochial plaintiffs require to other do would them than Lemon not have challenge However, complaint taxpayer standing con- education. Act No. allegation these tains no 109 under either clauses factual go they plaintiffs to the races because do not contribute desire to revenues by Act, been deterred reason of disbursed under not have racing “taxpayers application within known revenues the affected class.” 109, purposes none No. hand, taxpayer On the other such a alleged plaintiffs has the individual plaintiff Lemon, subject who is to the tax particular any ef- belief program supports particular practice on of a Act No. 109 fect statutory sought enjoined, scheme to be particular religion. “may requisite per not have the * * sonal stake in the outcome plaintiffs The individual other than 101, at Fo U.S. at 1953. S.Ct. Lemon “tax- can considered cusing upon the nexus between Lemon’s payers” standing scope within the of the taxpayer precise status as a and “the na requirements Cohen, if their Flast v. infringement ture of the constitutional money being spent “tax extracted and alleged”, at at U.S. S.Ct. specific pro- in violation of constitutional complain Lemon does that he has * * tections at U.S. required support been contribute plaintiffs S.Ct. at 1955. The who have Although establishment. Lemon was alleged not attended horse races have compelled race, to attend harness a being money that their “tax extracted” gov he by has been constrained the state a Act No. 109 unless virtue of pay attendance, ernment on a tax his general theoretical increase tax specifically tax that earmarked quirements might result purposes allegedly statute for sup racing failure allocate revenues port an establishment In general expenses. However, Flast v. view of function of pointed Cohen out that where a chal- restraining Establishment Clause lenged operates “upon particular tax taxation and disbursement * * * taxpayers proper class religion, paid possess the tax Lemon has party standing emphasis in the federal es a sufficient connection to chal require standing doctrine would lenged expenditures under Act No. 109 taxpayers limited to the within the af- alleged and to the constitutional infirmi fected class.” 392 U.S. at 104 n. ty of the requisite speci Act to lend the Although S.Ct. at 1955. ficity and adverseness to his Ac сlaim. referring taxpayer Court was stand- cordingly, plaintiff I conclude that Lemon ing under the Free Exercise Clause standing has validity to attack the of the quoted dictum, required nexus legislation under the Establishment taxpayer type between status and “the Clause. legislative attacked”, enactment depends at plaintiffs at also S.Ct. As I would so dismiss liability actual or alleges threatened a tax much of the claim as a violation challenge Establishment Equal of the Protection Clause because requisite Clause. standing my order to “the lack of However, sue. personal outcome”, view, allegations stake in the legislative disclose a scheme violative should monetary have an established the Establishment Clause claim, the Amendment, plaintiff Lemon Lemon’s First Amendment to which as complain. denied. standing motion dismiss should be As to to to shows alone APPENDIX A title Short

§ Elementary “Nonpublic may be cited as the known and act shall be This Secondary Act.” Education and 19, P.L.-, 1.§ No. June into con to enter Instruction of Public Title of Act: pur carry and to out the intent of the tracts poses promote the An Act to welfare act, and to Penn of establish of people of the Commonwealth regulations necessary; as are educa rules and sylvania; tion promote to the secular providing adminis payment for of the Commonwealth of children of attending; operation nonpublic costs incident trative Pennsylvania of providing creating; procedures for re act; Nonpubliс Elemen of schools; a ren payment Secondary Fund imbursement dering tary finance tional service; educational educa secular purchase of secular designating revenues portion nonpublic a services Racing Fund Harness State Commonwealth the the State within located Racing Horse Fund as resi benefit P.L. June Pennsyl sources -, funds. the Commonwealth dents of vania; authorizing Superintendent No. 109. policy Legislative finding; declaration legislative finding— hereby as matter of and declared It is determined secondary (1) elementary education exists That crisis involving (i) recognition new in the Commonwealth Nation and prime and of the national assets and cultural resources our intellectual development imperative spur now maximum educational national every young increasing capacity; (ii) rapidly costs occasion- American’s consequent population, teachers for more rise in school demands ed excellence, facilities, demands, costly but in the endeavor new general upon impact generally; inflation econ- education Commonwealth, commonly many struggle omy; other of the attempt- education, states, finance while also find sources which to many mounting ing areas burden of the bear financial other responsibility; governmental modern State during nonpublic today, (2) education in the Commonwealth That twenty per- decades, educating past bears the burden of more than recent elementary pupils Pennsylvania; secondary school cent of compulsory requirements Com- of the school attendance laws of the through nonpublic education; are fulfilled monwealth elementary secondary today (3) That education of children is recognized public purpose; nonpublic education, through as a welfare subjects, important providing instruction secular makes an contribu- achieving public purpose; govern- of such tion to welfare duty support public purposes achieving of mental welfare edu- part through government’s fulfilled cation those objectives nonpublic purely through achieved educa- tion; (4) nonpublic education, meeting That freedom choose reasonable standards, parental liberty for a child is a fundamental basic right; (5) freedom, right That the Commonwealth has in the fulfill- duties, ment of its into enter contracts for the of needed serv- persons nonpublic, ices with or institutions whether nonsectarian; (6) That, majority parents present nonpublic should a population desire to remove their children schools of the Commonwealth, public an intolerable added burden would financial to the result, long derangement stoppages as well school term im- pairment Pennsylvania; of education in that such hazard to the educa- substantially tion children in the reduced all education improved purchase provided through Commonwealth herein secu- Pennsylvania nonpublic lar educational services from sсhools. 19, P.L.-, June No. 2.§ 5603. Definitions § following terms whenever used or to in this act have referred shall meanings, except clearly following in those instances where the context indicates otherwise: (1) “Nonpublic Elementary Secondary shall Education Fund” by mean the fund created this act. (2) providing “Secular educational service” shall mean the of instruc- subject. in a secular (3) subject” any presented “Secular shall mean course which is public curricula of the schools of the in- Commonwealth and shall any subject expressing religious teaching, clude matter or the morals or worship any forms sect. “Nonpublic (4) any school, public school” shall mean other than a Pennsylvania, within school the Commonwealth wherein resident a may legally compulsory of the Commonwealth fulfill attend- school requirements ance of law. (5) purchase “Purchase secular educational service” shall mean the Superintendent nonpublic school, of Public Instruction a pursuant contract, of secular educational service cost at the reasonable thereof. (6) nonpublic “Reasonable cost” shall mean the actual cost to a providing a secular educational service and shall be deemed to solely pertaining salaries, clude the cost thereto of teachers’ textbooks and instructional materials. 19, P.L.-, June § No. Nonpublic Elementary Secondary Education Fund § special hereby Nonpublic There is created for the of this aсt a dedicated, Elementary Secondary particular Education Fund solely purchasing consisting use secular educational service of courses following subjects: mathematics, phys- foreign languages, modern science, physical education, provided, however, ical that as condi- a payment by Superintendent tion for Public Instruction for hereunder, Superintendent service Public rendered (i) solely Instruction shall establish that textbooks and other instruction- approved by Superintendent al materials shall of Public Instruction employed rendered; (ii) satisfactory have been in the instruction level pupil performance Superintendent approved by in standardized tests Instruction, attained; years (iii) of Public shall been after five following act, the effective date of service the secular educational holding sought for which reimbursement was rendered teachers approved by Department equal certification Public Instruction to the Provided, however, standards this Commonwealth for teachers schools: who, That such service rendered teacher school, act, nonpublic the effective date of this was full time teacher in a shall be deemed to meet this condition. 19, P.L.-, June No. 4.§ . 5605. Administration § Su- of this be under the direction of the administration act shall regu- perintendent Instruction, who establish rules and of Public shall number, pertaining thereto, every lations make contracts name necessary convenient

execute instruments expenses in connec- All incurred service hereunder. secular educational paid solely Non- out of this act shall be tion with the administration money public Elementary Secondary no raised Education Fund and be used schools of Commonwealth shall administration of this act. in connection with the 19, P.L.-, June No. Moneys for fund 5606. § Secondary Elementary Nonpublic Moneys. (a) and Into Permanent paid year: Fund shall be each Education up proceeds racing (1) million dollars the first ten horse All by by Racing ($10,000,000) Fund established Horse the State realized after, remaining 331),l (Act and not December No. the act of required for, payment forth set of administrative cost of all of the items act,2 plus (b) 18 of that in subsection of section proceeds racing (2) the sum of in excess of of all such horse One-half paid remaining ($10,000,000), to be half thereof million ten dollars the General Fund. into proceeds (b) Temporáry Moneys. in the amount the time that Until shall, given year, ($10,000,000) have been in a fiscal of ten million dollars Elementary Secondary paid Nonpublic Education Fund as and into the hereof,3 provided proceeds (a) three-fourths of section 6 for under subsection racing by Racing Fund realized the State Harness from harness amended,4 (P.L. 1978), by of December as established the act for, payments provided remaining required for in sub- after and paid (b) (d) act,5 shall be into sections of section Secondary according Nonpublic Elementary Fund Education following formula: any proceeds racing (1) for of the harness three-fоurths The entire Secondary Elementary Nonpublic year paid into shall be fiscal designated racing proceeds year as the horse until such Education Fund that, by combined are of such amount for said fund this section ($10,000,000) proceeds, racing ten million dollars the sum of the harness Elementary Secondary by Nonpublic Edu- have been realized shall Fund. cation paid racing Non- (2) into the to be from harness shall cease Proceeds year any public Elementary Secondary in for fiscal Fund Education by designated proceeds racing, Non- for the this section from horse which public Elementary equal Fund, Secondary ten ‍​‌‌‌​‌‌‌‌‌‌​‌‌​‌‌‌‌‌​‌​​​‌​‌‌​​​‌​‌‌‌​‌​‌‌​‌‌​‌‌‍million shall Education ($10,000,000). dollars Elementary Secondary Moneys Nonpublic Fund Department hereby appropriated Instruction Public purchase solely Superintendent for the of Public Instruction used expenses per- administrative secular educational service hereunder taining provided of this act. thereto as for in section 5 19, P.L.-, 109, § June No. seq. § 2651 et 115 P.S. 215 P.S. § s section. This seq. § 2601 et 15 P.S. = § 2616. 15 P.S. o Section 5605 this title. oí procedures Reimbursement (a) Requests payment purchase for reimbursement forms and educational be made on such service hereunder shall Superintendent under such conditions Instruction shall Public prescribe. Any nonpublic seeking shall main- such reimbursement separate accounting procedures, including tain such funds maintenance service, pertaining accounts to the cost secular educational actually expended establish an amount sеrvice money equal money sought Such to the amount of in reimbursement. subject accounts shall be to audit the Auditor General. Reimbursement payments Superintendent shall be made of Public Instruction equal payable day September, December, four installments on the first following March and June of the school term the school term which the secular educational service was rendered. (b) year any Reimbursements fiscal of secular service hereunder shall not exceed the total amount moneys actually paid Nonpublic Elementary which were into the and Sec- ondary year. Education Fund in that fiscal (c) that, year, In the moneys event fiscal the total amount of actually paid Nonpublic Elementary Secondary were into the pay Education Fund shall be insufficient the total amount of validated requests year, hereunder in reimbursement for that reimbursements shall proportion requests made which the total amount of such bears moneys Nonpublic Elementary the total amount of and Second- ary Education Fund. (d) Secretary shall, by Budget July year, certify fifteenth of each Superintendent Instruction, money of Public the total amount Nonpublic Elementary Secondary Education Fund. 19, P.L.-, June § No. 7. Effective date

§ July 1, This act shall take effect 19, P.L.-, June §8. No. Severability part invalid, parts If a of this act all valid that are severable part part the invalid remain in effect. If a of this act is invalid in one l applications, part appli- or more of its remains in effect valid applications. cations that are severable from the invalid 19, P.L.-, June No. § 9. i “of”, bill reads Enrolled CA9103

Case Details

Case Name: Lemon v. Kurtzman

Court Name: District Court, E.D. Pennsylvania

Date Published: Apr 20, 1970

Citation: 310 F. Supp. 35

Docket Number: Civ. A. 69 1206

Court Abbreviation: E.D. Pa.