MCKEESPORT AREA SCHOOL DISTRICT v. PENNSYLVANIA DEPARTMENT OF EDUCATION
No. 79-1295
Supreme Court of the United States
June 2, 1980
446 U.S. 970
MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins, concurring.
Under Pennsylvania law, a public school district must provide nonpublic school children with transportation to and
I
In School District of Pittsburgh v. Pennsylvania Dept. of Education, 443 U.S. 901 (1979), we dismissed for want of a substantial federal question an appeal challenging the constitutionality of the same statute challenged here. The question рresented by the jurisdictional statement in School District of Pittsburgh reads as follows: “Whether Pennsylvania Act 372 of 1972 [Act of Dec. 29, 1972, P. L. 1726, No. 372, amending § 1361 of the Public School Code of 1949 (
II
Nor can it be maintained that, although the identical statute and constitutional arguments are involved in both cases, School District of Pittsburgh invоlved a different application of the statute and thus that a different legal response is occasioned here. The instant litigation commenced with a show-cause order emanating from the Pennsylvania Department of Education, an order that placed in jeopardy under the statutе appellant school district‘s public transportation reimbursement for the 1973-1974 school year. The order was premised not on any district action regarding field trips, but on the district‘s alleged refusal to transport students to five specified nonpublic schools beyond district boundaries in violation of the statute. Juris. Statement 7-8. Similarly, in School District of Pittsburgh, the litigation commenced with a show-cause order from the Department of Education threatening the appellant district‘s public transportation reimbursement for the 1973-1974 school year and relying on the district‘s alleged refusal to transport students to 20 specified institutions located beyond district boundaries. Juris. Statement, O. T. 1978, No. 78-1614, pp. 7-8.
In short, both cases involve controversies surrounding transportation to nonpublic schools outside the relevant district in accordance with a statute that also happens to provide for educational field trips for nonpublic school children. Neither case, however, involves any claim that the field-trip provision, as distinguished from the provision for transportation to and from nonpublic schools, is a forbidden establishment of religion.1 In neither case did the state courts address such an
III
Affirming this case thus would involve no inconsistency with Wolman v. Walter, 433 U.S. 229 (1977), where this Court saw lurking behind a routine exercise in local pedagogy, the educational field trip, the menacing hulk of an established state religion. Since MR. JUSTICE BLACKMUN‘S concurrence adverts to Wolman as authority in this area, however, that casе merits further examination.
In Wolman the Ohio Legislature had enacted a multifaceted program designed to provide assistance to nonpublic schools, presumably in recognition of the central importance of these schools in fulfilling the Nation‘s educational mission. See Committee for Public Education v. Nyquist, 413 U.S. 756, 813-820 (1973) (WHITE, J., dissenting). The program in-
The Court believed that the field-trip provision had several troubling features. First, “the nonpublic school сontrols the timing of the trips and, within a certain range, their frequency and destinations,” indicating that “the schools, rather than the children, truly are the recipients of the service. . . .” 433 U.S., at 253. Second, the Court observed that, “although a trip may be to a location that would be of interest to those in public schools, it is the individual teacher who makes a field trip meaningful,” ibid., and this poses “an unacceptable risk of fostering of religion [as] an inevitable byproduct.” Id., at 254. Finally, to ensure that nonpublic schools do not pursue sectarian ends on their field trips would entail supervision by public school authorities, which “would сreate excessive [governmental] entanglement” in the affairs of sectarian institutions. Ibid.
In the present case, as in Wolman, we are not faced with a legislative enactment evincing a sectarian purpose. Id., at 236. Fortunately, all of us continue to regard the achievement of educational quality as a valid secular end that States may pursue. A secular legislative purpose, however, is only one of the Court‘s Establishment Clause indicia. To pass muster a statute must also have “a principle or primary effect that neither advances nor inhibits religion” and “must not foster an excessive government entanglement with religiоn.” Ibid. See Roemer v. Maryland Public Works Bd., 426 U.S. 736, 748 (1976); Committee for Public Education v. Nyquist,
What is the “principal or primary effect” of such a provision? The most reasonable appraisal surely suggests that the principal or primary effect of field trips for nonpublic school students is that boys and girls whose parents have exercised their constitutional right to send their children to private schools, Pierce v. Society of Sisters, 268 U.S. 510 (1925), will expand their educational horizons, just as the public school children benefiting from the same experience will expand theirs. Is this a danger from which we must shield the Ameriсan public? The Court in Wolman failed to explain why we should not consider the venerable institution of the field trip as firmly grounded in sound educational policy and the effect sought to be created by educators and legislators as pedagogical and not religious. In Wolman, the Court could do no more than voice insubstantial and baseless fears that field trips might be used for religious indoctrination.
And what of excessive entanglement? As I read the instant statute, the State of Pennsylvania has devised no mechanism for “policing” nonpublic schools. The Supreme Court of Pennsylvania has similarly concluded that the “Act before us does not in any manner require the state to engage in ‘a comprehensive, discriminating and continuing’ surveillance of the nonpublic school teachers.” 483 Pa., at 566, 397 A. 2d, at 1168, quoting Lemon v. Kurtzman, supra, at 619. Nor had the State of Ohio in Wolman devised such a mechanism. Yet there the Court, without the benefit of any record facts showing actual entanglement, went on to conсlude that, if the State of Ohio were ever to police nonpublic school field trips, excessive entanglement would result.
The precedential—or, for that matter, the persuasive—force of such ex cathedra wanderings is deservedly minimal. A decision that concedes a secular purpose, desсribes no actual
Responding to such fears is a difficult, if not impossible, task. One can say “it isn‘t so” on the indisputable ground that “it isn‘t.” This would be one way of declining to find in the record what is not there. Perhaps the best response, however, is to observe that we ought “not assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment,” Lemon v. Kurtzman, supra, at 618, quoted in Wolman v. Walter, 433 U.S. 229, 254 (1977), and to remind the Court “that legislation having a secular purpose and extending governmental assistance to sectarian schools in the performance of their secular functions does not constitute ‘law[s] respecting an establishment of religion’ forbidden by the First Amendment merely because a secular program may incidentally benefit a church in fulfilling its religious mission.” Lemon v. Kurtzman, supra, at 663-664 (WHITE, J., concurring in part and dissenting in part).2
MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN joins, concurring.
Section 1361 of the Pennsylvania Public School Code of 1949 (
I join the Court‘s dismissal of this case only on the specific assumption that the issue of the constitutionality of the field-trip provision of the Pennsylvania statute is not before us. The absence of that issue, for me at least, is not automatically appаrent from the jurisdictional statement and the motion to dismiss that have been filed with this Court, or from the summary opinion of the Commonwealth Court. That opinion, however, states: “No issue of law or fact distinguishes this case from earlier cases decided by this Court and upholding the Secretary‘s interpretation of thе Act and the Act‘s constitutionality as so interpreted.” 38 Pa. Commw., at 291, 392 A. 2d, at 912. That court‘s “earlier cases” cited are School Dist. of Pittsburgh v. Commonwealth Dept. of Ed., 33 Pa. Commw. 535, 382 A. 2d 772 (1978); Springfield School Dist. v. Commonwealth Dept. of Ed., 35 Pa. Commw. 71, 384 A. 2d 1049 (1978); and Pequea Valley School Dist. v. Commonwealth Dept. of Ed., 36 Pa. Commw. 403, 387 A. 2d 1022 (1978).
On appeal to the Supreme Court of Pennsylvania, those three decisions of the Commonwealth Court were affirmed by a divided vote in a single opinion. Springfield School Dist. v. Department of Ed., 483 Pa. 539, 397 A. 2d 1154 (1979). In its opinion, the Supreme Court of Pennsylvania construed the basic free-transportation provision of the Pennsylvania statute in such a way as to alleviate federal constitutional concern. It specifically noted, however, that the field-trip provision of the Act “is not before us in these appeals,” and that
In the present case I therefore assume that when the Commonwealth Court observed that no issue of law or fact distinguished this case from its cited “earlier cases,” it necessarily means that the constitutionality of the field-trip provision was not at issue. It is only on that assumption that I join the Court in its dismissal of the appeal, for in Wolman v. Walter, 433 U.S. 229, 252-255 (1977), the Court flatly ruled that field-trip reimbursements to parochial schools are violative of the First Amеndment. The continuing vitality of Wolman as controlling precedent in this area was recognized in Committee for Public Education v. Regan, 444 U.S. 646, 654 (1980).
Notes
“The Court has not been blind to the fact that in aiding a rеligious institution to perform a secular task, the State frees the institution‘s resources to be put to sectarian ends. If this were impermissible, however, a church could not be protected by the police and fire departments, or have its public sidewalk kept in repair. The Court never has held thаt religious activities must be discriminated against in this way.”