“Any interpretation of legislation, therefore, which would deny the fullest voluntary freedom in religious worship would not only be contrary to these American historical expressions of faith, but would also offend against the First Amendment with its bell-clanging proclamation of religious freedom.”
How later courts described this case
- “Any interpretation of legislation, therefore, which would deny the fullest voluntary freedom in religious worship would not only be contrary to these American historical expressions of faith, but would also offend against the First Amendment with its bell-clanging proclamation of religious freedom.”
- constitutionality of busing for private school children upheld even if parochial schools receive indirect financial benefit from busing
Written by the judges who cited it.
The opinion
Dissenting Opinion by
Me. Justice Cohen :
The act in question violates, in my opinion, both the Pennsylvania Constitution and the Federal Constitution, and is further void for vagueness and incompleteness. Moreover, it is premised upon the subterfuge of the “child benefit” theory, and the present case comes before us with a record insufficient to substantiate the arguments made in support of the statute.
Article X, § §1 and 2 of the Pennsylvania Constitution provide: “§1. Public school system. The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public schools, wherein all the children of this Commonwealth above the age of six years may be educated, and shall appropriate at least one million dollars each year for that purpose.
“§2. Diversion of school moneys to sectarian schools. No money raised for the support of the public schools of the Commonwealth shall be appropriated to or used for the support of any sectarian school.”
Section 1 is a mandate to the legislature to maintain and support a system of public schools. Section 2 is a prohibition against the diversion of public school tax moneys to or for the support of sectarian schools. As I view the matter, in a society which tends to increase the size of schools and to erect them ever further from the homes of the students, the provision of transportation to and from school has become an integral function of the educational system and is a direct aid thereto. Accordingly, where the school system is sectarian, the provision of tax supported transportation for the *260 purpose of affording a daily pilgrimage to a place offering religious training is an appropriation to a sectarian institution in violation of Article 10, §2 of the Constitution of this Commonwealth.
Regarding the First Amendment argument, I recognize the apparent binding effect of Everson v. Board of Education, 330 U.S. 1 (1947). However, I believe that certain more recent statements of the Supreme Court have to a great extent diminished the force and impact formerly enjoyed by Everson . In Illinois ex rel. McCollum, v. Board of Education, 333 U.S. 203 (1948), the Court held that a “released time” arrangement whereby pupils were permitted to receive religious instruction in public school buildings during regular school hours was in violation of the First Amendment principle of separation of church and state; in Torcaso v. Watkins, 367 U.S. 488 (1961), the Court held that the requirement of the Maryland Constitution that every office holder must declare a belief in the existence of God violated the First Amendment as an invasion of the individual’s freedom of belief and religion; in Engel v. Vitale, 370 U.S. 421 (1962), the Court held that the use of the public school system to encourage recitation of a brief non-denominational prayer was inconsistent with the establishment clause; and in Abington School District v. Schempp, 374 U.S. 203 (1963), the Court held that school exercises requiring the reading of Bible verses or the Lord’s Prayer violated the establishment clause. Especially significant is the fact that one of the critics of Everson is Justice Douglas, who was among the five majority justices in Everson but who in Engel stated in a concurring opinion that' as he reconsidered the decision in Everson , it was inconsistent with the First Amendment and that the dissenting opinion of Justice Rutledge in Everson was better law. I should like the United States Supreme Court finally to decide this case so that they may re *261 consider the Everson doctrine. Accordingly, I would appoint a master in each case with instructions that a record be made upon which both this Court and the United States Supreme Court might more meaningfully reach a decision.
The act in question is further void inasmuch as it is vague and incomplete. The statute authorizes busing “over established public school bus routes” and requires nonpublic school pupils to be transported to and from “the point or points on such routes nearest or most convenient to the [nonpublic] school which such pupils attend.” The Attorney General, apparently realizing that as enacted the statute remained too vague to be implemented, outlined in a letter to the Acting Superintendent of Public Instruction several guidelines for the implementation of the act. In it the Attorney General declared that a school board may make deviations from established routes, may make new routes and re-routes, and may reestablish routes in order to accommodate nonpublic school children. In addition, he defined as part of the established public school bus route any distance which a school bus is required to travel beyond a public school in order to complete its trip or reach its place of storage. In effect, the Attorney General assumed the role of an overseer of the legislature and rather than interpret the act, saw fit to write his own version simply because the statute passed by the General Assembly was incomplete and unworkable. Neither the Attorney General nor the Courts may write legislation for the General Assembly, and when that body has failed to include certain essential requirements in an enactment, neither the executive nor the judiciary may under the guise of interpretation add the missing requirements. Altieri v. Allentown Officers’ and Employees’ Retirement Board, 368 Pa. 176 , 81 A. 2d 884 (1951) ; Akins v. York Officers’ and Employees’ Retirement Board, 368 Pa. 182 , 81 A. 2d 883 (1951); Note, *262 The Void-for-Vagueness Doctrine, 109 TJ. Pa. L. Rev. 67 (1960).
Finally, on the record (or lack of one) before us, I am unable to conclude that this statute may be sustained by virtue of the “child benefit” theory. It is obvious that that theory is merely a subterfuge by which its supporters justify the enactment in question. For one thing, the act does not provide free transportation for all pupils. It excludes from the enjoyment of its benefits students who attend private schools operated for profit. I can see no basis for omission of these children if the statute was truly enacted for the safety and welfare of the children of our Commonwealth. The reason is clear, however, because an examination of the statute indicates that safety was not the predominant motive for its passage. The act, as passed, will actually marease the danger to children who formerly were transported from their homes to the private or parochial schools in privately operated buses. The act provides for transportation of such pupils to and from points on established school bus routes “nearest or most convenient to the [nonpublic] school. . . .” This statute completely ignores the additional hazards that imperil these children, and cannot be sustained by reference to a makeshift “child welfare” theory. The only way this provision can truly serve the welfare of the children of the Commonwealth is that it be implemented by providing to the nonpublic school children the same service accorded to those that attend public school. That means taking them to and bringing them from their schools and by so doing, clearly violating the Pennsylvania and Federal Constitutions. As I have indicated, bus transportation has become an integral part of the process of education and any improvement in the transportation of pupils must be considered as an aid to the schools. In fact, the statute in question, in addition to the provisions herein considered, pro- *263 Tides for free transportation of public school pupils for tours “connected with the educational pursuits of the pupils.” The act was passed as an aid to education and that is all. Since it grants tax supported benefits to sectarian educational institutions it is unconstitutional. That is all there is to it.
I dissent.