delivered the opinion of the Court.
On June 28, 1971, this Court handed down
Lemon
v.
Kurtzman,
On August 27, 1971, the Pennsylvania General Assembly promulgated a new aid law, entitled the “Parent Reimbursement Act for Nonpublic Education,” providing funds to reimburse parents for a portion of tuition expenses incurred in sending their children to nonpublic schools. Shortly thereafter, this suit, challenging the enactment and seeking declaratory and injunctive relief, was filed in the United States District Court for the Eastern District of Pennsylvania. The plaintiffs were Pennsylvania residents and taxpayers who had paid the state tax used to finance the aid program, and at least one plaintiff was also the parent of a child attending a public school within the State. The State Treasurer was named as the defendant and was sued in that capacity. Motions to intervene on the side of the State were granted to a number of parents whose children were enrolled in nonpublic schools and who were therefore entitled to payments under the challenged law.
The defendant and intervenors filed a motion to dismiss the complaint for failure to state a claim upon which relief might be granted. The motion was considered by a properly constituted three-judge District Court. On April 6, 1972, the panel denied the motion in a full opinion explicating its views and holding that the law violated the Establishment Clause.
Direct appeals were docketed in this Court by the State Treasurer and by the several intervenors.
1
We noted probable jurisdiction, consolidated the appeals for oral argument, and scheduled the cases to be argued with the several appeals in a case from New York involving an issue in common with this case.
I
Pennsylvania’s “Parent Reimbursement Act for Nonpublic Education”
2
provides for reimbursement to parents who pay tuition for their children to attend the State’s nonpublic elementary and secondary schools. Qualifying parents are entitled to receive $75 for each dependent enrolled in an elementary school, and $150 for each dependent in a secondary school, unless that amount exceeds the amount of tuition actually paid.
Like the New York tuition program, the Pennsylvania law is prefaced by “legislative findings,” which emphasize its underlying secular purposes: parents who send their children to nonpublic schools reduce the total cost of public education; “inflation, plus sharply rising costs of education, now combine to place in jeopardy the ability of such parents fully to carry this burden”; if the State’s 500,000 nonpublic school children were to transfer to the public schools, the annual operating costs to the State would be $400 million, and the added capital costs would exceed $1 billion; therefore, “parents who maintain students in nonpublic schools provide a vital service” and deserve at least partial reimbursement for alleviating an otherwise “intolerable public burden.”
4
We certainly do not question now, any more than we did two Terms ago in
Lemon
v.
Kurtzman,
5
the reality and
We turn, then, to consider the new law's effect. As the case was decided in the District Court initially on defendant's and intervenors’ motions to dismiss, the court accepted as true plaintiffs’ allegation with respect to the identifying characteristics of the schools qualifying under the Act.
For purposes of determining whether the Pennsylvania tuition reimbursement program has the impermissible effect of advancing religion, we find no constitutionally significant distinctions between this law and the one declared invalid today in
Nyquist.
Each authorizes the States to use tax-raised funds for tuition reimbursements
Neither the State Treasurer nor appellant-intervenor in No. 72-620 has suggested any way in which the present law might be distinguished from the one in question in Nyquist. The intervenors in No. 72-459 have, however, proffered a distinction which deserves discussion because* it serves to underline the basis for our ruling in these cases. Intervenors suggest that New York’s law might be differentiated on the ground that, because tuition grants there were available only to parents in an extremely low income bracket (less than $5,000 of taxable income), it would be reasonable to predict that the grant would, in fact, be used to pay tuition, rendering the parent a mere "conduit” for public aid to religious schools. Since Pennsylvania authorizes grants to. all parents of children in nonpublic schools — regardless of income level — it is argued that no such assumption can be made as to how individual parents will spend their reimbursed amounts. 7
II
Apart from the Establishment Clause issues central to this case, appellant-intervenors in No. 72-459 make an equal protection claim that was not directly ruled on by the District Court. These intervenors are 12 parents whose children attend nonpublic schools. Two parents, the Watsons, send their child to a nonsectarian school while the remainder send their children to sectarian schools. The District Court’s final order enjoined the State Treasurer from disbursing funds to any parents, irrespective of whether their children attended sectarian or nonsectarian schools. The court considered and rejected the argument that the state law should be treated “as containing a separable provision for aid to parents of children attending nonpublic schools that are not church related.”
9
Although the Act contained a severability clause,
10
the court reasoned that, in view of the fact that
Appellants ask this Court to declare the provisions severable and thereby to allow tuition reimbursement for parents of children attending schools that are not church related. If the parents of children who attend nonsectarian schools receive assistance, their argument continues, parents of children who attend sectarian schools are entitled to the same aid as a matter of equal protection. The argument is thoroughly spurious. In the first place, we have been shown no reason to upset the District Court’s conclusion that aid to the nonsectarian school could not be severed from aid to the sectarian. The statute nowhere sets up this suggested dichotomy between sectarian and nonsectarian schools, and to approve such a distinction here would be to create a program quite different from the one the legislature actually adopted. See
Champlin Refining Co.
v.
Corporation Commission of Oklahoma,
Ill
In holding today that Pennsylvania’s post-Lemon, v.
Kurtzman
attempt to avoid the Establishment Clause’s prohibition against government entanglements with religion has failed to satisfy the parallel bar against laws having a primary effect that advances religion, we are not unaware that appellants and those who have endeavored to formulate systems of state aid to nonpublic education may feel that the decisions of this Court have, indeed, presented them with the “insoluble paradox” to which Mr. Justice White referred in his separate opinion in
Lemon
v.
Kurtzman.
Affirmed.
[For dissenting opinion of The Chief Justice, see ante, p. 798.]
[For dissenting opinion of Mr. Justice White, see ante, p. 813.]
Notes
No. 72-459, Sloan v. Lemon, is an appeal filed by the State Treasurer and by 12 intervening parents, two of whom are the Watsons — the parents of a child registered in a nonreligious, private school. No. 72-620, Crouter v. Lemon, is a separately docketed appeal initiated by another one of the intervenors.
Pa. Laws 1971, Act 92, Pa. Stat. Ann., Tit. 24, §§ 5701-5709 (Supp. 1973-1974) (the entire enactment is printed in an appendix to the District Court’s opinion,
Act 92, supra, § 5704.
Id., §5702.
These findings are similar to the ones which supported the Pennsylvania teacher-salary reimbursement law involved in
Lemon
v.
Kurtzman.
There the Court noted that the Act was passed “in re
Since the grants in this case are not limited to reimbursing only a percentage of the tuition bill, the argument could not be made here that the law contains any “statistical guarantee of neutrality,” Nyquist, ante, at 787.
Brief for Appellants Diaz et al. 23-24. It was also alleged, as a ground of distinction between the Pennsylvania and New York tuition reimbursement grants, that there was less likelihood of political divisiveness under the Pennsylvania scheme because it is financed out of a self-perpetuating fund derived from the state cigarette tax. Thus, it is contended that no annual appropriations
Appellants have also sought to distinguish Nyquist on the ground that Pennsylvania’s legislation is more carefully drafted to avoid excessive administrative entanglements; the program is administered by an independent authority rather than by the Commissioner of Education, and its funds are not derived from the general revenues available for education but from a separate fund. Brief for Appellant Diaz et al. 24. Since Pennsylvania’s law falls under the second aspect of our test because its effect, inevitably, is to advance religion, we need not address this claimed distinction.
Order of District Court, dated June 20, 1972, scheduling oral arguments on plaintiffs’ summary judgment motion and outlining the questions to be argued at that time, reprinted in App. 84a-85a.
“Section 10. Severability. — If a part of this act is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this act is invalid, in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.” Pa. Laws 1971, Act 92. (Emphasis supplied.)
Final Order of District Court, dated July 21,1972, permanently enjoining enforcement of the Act, reprinted in App. 87a.
See also
Lemon
v.
Kurtzman,
