Appendix — Lemon v. Kurtzman
Supreme Court brief1971
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Sew adcbed (asada vay the ees UREA EN TER ERY EGRESS ES AQ
fy CORT LOCUTTTE TT OPC CTE TCCEUCT ILL PELLET Al8
Motion for Preliminary Injunction ................++++05- A26
Defendant Schools’ Motion to Dismiss the Complaint for Fail-
ure of Plaintiffs to Have Standing to Sue .............. A27
Defendant Schools’ Motion to Dismiss the Complaint for Fail-
ure of Plaintiffs to Have Standing to Sue (Amended) .. A31
Defendant Schools’ Motion to Dismiss Plaintiffs’ Complaint
For Failure to State a Claim Upon Which Relief Can Be
ND cd hunni ds ususauesbes nea ce Ca wirdus senda sees A35
Defendant Schools’ Motion Under Rule 23(c) ............ A39
Answer to Defendants’ Motion Under Rule 23(c) ......... A42
Motion of the Pennsylvania Association of Independent Schools
to Intervene as a Party Defendant ................... A43
OUR neds ee caehendedn stbed eee eeoedeeenl A45
NN, oe ence caw ceartese bee ¥nkeensn DuweKaes A53
Defendants’ Motion to Dismiss ..............-eeeeeeeeees A55
Amended Complaint ara eneued ie cuke eas
Plaintiffs’ Memorandum on the Necessity of a Three-Judge
CEE Vicks cheb uke dks cadkiash «peeks cere teas eEeNes A58
merge Poet Ciel AWE oi ccc cicsescewsenterecess A64
Defendant Schools’ Motion to Strike Representative Allegations
of the Complaint and the Amended Complaint or, in the
Alternative, for a Hearing Under Rule 23(c) .......... A67
_ Attorney General’s Supplemental Memorandum of Law .... A72
Opinion and Order of the United States District Court for
| the Eastern District of Pennsylvania Dated November
BSE ws SURE ES Nao VR ee RNR ee Caden tn cheen oe
APPENDIX.
UNITED STATES DISTRICT COURT
For THE Eastern District or PENNSYLVANIA
Crviz Action No. 69-1206.
ALTON J. LEMON, PRISCILLA REARDON, BETTY J.
WORRELL, anp PENNSYLVANIA STATE EDU-
CATION ASSOCIATION, PENNSYLVANIA CON-
FERENCE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, PENN-
SYLVANIA COUNCIL OF CHURCHES, PENN-
SYLVANIA JEWISH COMMUNITY RELATIONS
CONFERENCE, AMERICANS UNITED FOR SEP-
ARATION OF CHURCH AND STATE, AMERICAN
CIVIL LIBERTIES UNION OF PENNSYLVANIA
INC.
Vv.
DAVID H. KURTZMAN, as SuPERINTENDENT oF PUBLIC
INSTRUCTION OF THE COMMONWEALTH OF PENNSYLVANIA,
GRACE SLOAN, as State TREASURER OF THE COMMON-
WEALTH OF PennsyLvaniA, ST. ANTHONY’S ROMAN
CATHOLIC CHURCH SCHOOL, ARCHBISHOP
WOODS GIRLS HIGH SCHOOL, UKRAINIAN
CATHOLIC SCHOOL, GERMANTOWN LUTHER-
AN ACADEMY, AKIBA HEBREW ACADEMY,
PHILADELPHIA MONTGOMERY CHRISTIAN
ACADEMY ann BETH JACOBS SCHOOLS OF
PHILADELPHIA
For plaintiff:
Henry W. Sawyer III
(Duane, Morris & Heckscher for applicant for interven-
tion as deft. Pennsylvania Association of Independent
Schools)
(Al)
A2 Docket Entries
For defendant:
William C. Sennett—Edward Friedman for David H.
Kurtzman, Grace M. Sloan
Semisch & Commons, 408 N. Easton Rd., Willow Grove
Pa. 19090 for Phila. Montgomery Christian Acad-
emy
Samuel Rappaport for Akiba Hebrew Academy & Beth
Jacob School of Phila.
William B. Ball—Joseph G. Skelly, 127 State St., Har-
risburg Pa. 17101 for Archbishop Wood High
School for Girls
James E. Gallagher Jr.—C. Clark Hodgson Jr. for St.
Anthony’s Roman Catholic Church School and
Ukrainian Catholic Holy Ghost School
F. Raymond Heuges for Germantown Lutheran Acad.
DOCKET ENTRIES.
June 3, 1969. Complaint filed.
June 3, 1969. Summons exit.
June 3, 1969. Plffs. motion for Preliminary Injunction,
filed.
June 9, 1969. Order Hastie Chief Judge Third Judicial
Circuit designating Judge Francis L. Van Dusen and
District Judge Alfred L. Luongo to sit with District
Judge E. Mac Troutman as members of the court for
hearing and determination of this action, filed.
6-11-69 entered
June 17, 1969. Order amending order constituting a three
judge court substituting Chief Judge Wilham H.
Hastie to sit with District Judge Alfred L. Luongo
and Judge E. Mac Troutman, filed.
6-18-69 entered
Ju
Ju
Ju
Ju
Ju
Ju
Ju
Ju
Ju
Ju
Ju
Docket Entries A3
June 18, 1969. Appearance of William C. Sennett Esq. and
Edward Friedman Esq. for Davis H. Kurtzman et al,
filed.
June 18, 1969. Appearance of Semisch & Commons Esq.
for Phila. Montgomery Christian Academy, filed.
June 19, 1969. Appearance of Samuel Rappaport Esq. for
Akiba Hebrew Academy et al., filed.
June 19, 1969. Appearance of William B. Ball Esq. Joseph
G. Skelly Esq. for Archbishop Wood High School for
Girls, filed.
June 19, 1969. Appearance of James E. Gallagher Jr. Esq.
C. Clark Hodgson Jr. Esq. for St. Anthony’s Roman
Catholic Church School et al., filed.
June 23, 1969. Appearance of F. Raymond Heuges, Esq.
for Germantown Lutheran Academy, filed.
June 25, 1969. “Motion of St. Anthony’s Roman Catholic
School and Ukrainian Catholic Holy Ghost School et
al. for extension of time to file an answer, etc., filed.
June 25, 1969. Order that time for Defts. to answer, ete.
is ExtenpreD to 8/10/69, filed. 6/27/69 entered and
copies mailed per C. C. Hodgson, Jr., Esq.
June 27, 1969. Defts. motion for and Order ExtTEenpine
time for all defts. to answer ete. to Aug. 10, 1969,
filed.
6/30/69 entered and copies mailed
July 7, 1969. Plffs.’ interrogatories to defts. other than
David Kurtzman & Grace Sloan, filed.
July 7, 1969. Plffs.’ motion under Rule 34 for Production
of Documents, filed.
July 25, 1969. Deft. Schools’ motion to dismiss complaint
for failure of plffs. to have standing to sue, filed.
A4 Docket Entries
July 25, 1969. Deft. Schools’ motion to dismiss complaint
for failure to state a claim upon which relief can be
granted, filed.
July 25, 1969. Deft. Schools’ motion under Rule 23(c),
filed.
July 25, 1969. Deft. Schools’ motion to strike paragraph
five of plffs. complaint and for a more definite state-
ment, filed.
July 30, 1969. Appearance of Duane, Morris & Heckscher,
Esq. for applicant for intervention as a party deft.
Pennsylvania Association of Independent Schools,
filed.
July 30, 1969. Motion of The Pennsylvania Association of
Independent Schools to intervene as a party deft.,
filed.
July 31, 1969. Motion of David H. Kurtzman, et al, to dis-
miss, filed.
July 31, 1969. Plffs.’ memorandum respecting defts.’ mo-
tion to dismiss for failure to state a cause of action,
filed.
Aug. 5, 1969. Plffs. answer to defts. motion under Rule
23(c), filed.
Aug. 19, 1969. Deft. Schools’ motion to dismiss the Com-
plaint, filed.
Aug. 20, 1969. Summons returned: ‘‘On 6/24/69 served
David H. Kurtzman; on 6/9/69 served Beth Jacob
Schools, Archbishop Woods Girls High School, Ger-
Docket Entries ADd
mantown Lutheran Academy, Akiba Hebrew <Aca-
demy, Phila. Montgomery Christian Academy, on
6/10/69 served St. Anthony’s Roman Catholic
School, Ukrainian Catholic Holy Ghost School; and
on 6/11/69 served Grace Sloan’’ and filed.
Aug. 20, 1969. Pretrial Order Grantine motion of Pa.
Association of Independent Schools to intervene as a
party deft. re argument on defts’ motion to dismiss,
without prejudice for more general intervention after
disposition of motions; Defts’ motions to dismiss for
failure to state a cause of action, for failure to have
standing to sue, and Defts’ motions to strike a por-
tion of the complaint shall be listed for argument at
a date to be fixed by the Court; Defts’ objections to
plffs’ interrogatories to be filed within 30 days, ete.;
Vincent J. McCoola to be deposed before 10/1/69;
that this action shall not be maintained as a class
action; and that the last sentence of paragraph 7 of
the complaint and similar allegations need not be
answered by defts., filed. 8/22/69 entered and copies
mailed.
Sept. 18, 1969. Objections of Germantown Lutheran Acad-
emy to plffs. interrogatories, filed.
Sept. 19, 1969. Objections of Phila. Montg. Christian Acad-
emy to plffs. interrogatories, filed.
Sept. 19, 1969. Objections of Akiba Hebrew Academy and
Beth Jacob School to plff’s interrogatories, filed.
Sept. 19,1969. Objections of Archbishop Wood High School
for Girls, et al. to plffs. interrogatories, filed.
Sept. 22, 1969. Deft. Schools’ memorandum of law on the
propriety of a three judge court, filed.
ioe ety RAYE SEEN EE LIN NYO ARAFAT ONE GE OEE OR A 8 aS SAN
A6 Docket Entries
Sept. 22, 1969. Brief in support of deft. Schools’ motion to |
strike paragraph five and for a more definite state-
ment, filed. (
Sept. 22, 1969. Brief in support of deft. Schools’ motion to
dismiss plffs. complaint for failure to state a claim
upon which relief can be granted, filed.
Sept. 22, 1969. Brief in support of motion to dismiss plffs.
complaint for failure of plffs. to have standing to sue,
filed. (
Sept. 22, 1969. Brief on motion to dismiss of deft. State
Officials Kurtzman and Sloan, filed.
Oct. 1, 1969. Brief in response to defts. motion to dismiss
for lack of standing, filed. )
Oct. 1, 1969. Plffs. memorandum on the necessity of a
three-judge court, filed.
Oct. 1, 1969. Plffs. memorandum contra defts. motion te
dismiss, filed.
Oct. 7, 1969. Deft. Schools reply brief on motion to dismiss
for failure to state a claim, filed.
Oct. 7, 1969. Deft. Schools reply brief on motion to dismiss
for lack of standing, filed.
Oct. 13, 1969. Argued sur defts. motion to dismiss; defts.
motion re 3-judge court and defts. motion to strike
parts of complaint.
Oct. 13, 1969. Petition and Order granting leave to Penna.
Assec. of Independent Schools to file brief, filed.
(10/14/69 entered.)
Docket Entries Aj
Oct. 16, 1969. Amended complaint, filed.
Oct. 16, 1969. Transcript of Oct. 13, 1969, filed.
Oct. 24, 1969. Deft. Schools’ motion to strike representa-
tive allegations of the complaint and the amended
complaint, or in the alternative, for a hearing under
Rule 23(c), filed.
Oct. 24, 1969. Plffs. interrogatories to D. H. Kurtzman,
filed.
Nov. 4, 1969. Attorney General’s supplemental memoran-
dum of law, filed.
Nov. 28, 1969. Opinion Troutman J. and Luongo J. and
Order that defts.’ motion to dismiss the complaint as
to the organizational plffs. for lack of standing on all
issues raised herein is Grantep, defts. motion to dis-
miss complaint as to plffs. Lemon for lack of standing
under the religious clauses of the First Amendment
is Denrep; defts. motion to dismiss complaint as to
remaining individual plffs. Priscilla Reardon and
Betty J. Worrell, for lack of standing as taxpayers
under the establishment clause is Grantep; defts.
motion to dismiss complaint as to individual plffs. for
lack of standing under the free-exercise clause is
Dentep, defts. motion to dismiss complaint as to all
individual plffs. for lack of standing under equal pro-
tection clause is Grantep and defts. motion to dismiss
the complaint for failure of all plffs. to state a claim
upon which relief can be granted is GRANTED AND dis-
senting Hastie Chief Circuit Judge, filed. (11-28-69
entered & notice mailed.)
A8 Docket Entries
Dec. 18, 1969. Notice of appeal by plffs. to the Supreme
Court of the United States, and certificate of service,
filed.
Jan. 20, 1970. Certified copy of record transmitted to
Supreme Court of U.S.
Apr. 30, 1970. Certified copy of Order of Supreme Court
of the U.S. stating that probable jurisdiction is noted
and the case placed on the summary calendar, filed.
(Copies to JJ. Troutman, Luongo and Hastie.)
1e
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Complaint A9
COMPLAINT.
(Title Omitted in Printing.)
I, STATEMENT AS TO JURISDICTION.
1. This is a civil action brought by the plaintiffs on
their own behalf and on behalf of all others similarly
situated, for a temporary and permanent injunction against
the allocation and use of funds of the Commonwealth of
Pennsylvania for the support of, or to finance in whole or
in part sectarian schools and other private schools whose
policies and practices, by purpose or effect, exclude from
admission or otherwise discriminate against persons by
reason of race or religion, and to declare such use as
violative of the First and Fourteenth Amendments to the
Federal Constitution.
2. Jurisdiction is conferred upon this Court pursuant
to Title 28, U. S. Code, Sections 1331, 1343, 2281, 2283, 2201
and 2202.
3. The amount in controversy in this suit, exclusive
of interest and costs, is in excess of Ten Thousand ($10,000)
Dollars, as more fully appears hereinafter.
4. Each of the organizational plaintiffs is an associa-
tion of persons resident in the Commonwealth of Penn-
sylvania, some of which individuals, in each case, are resi-
dent in the Eastern District of the Commonwealth of
Pennsylvania and all of which organizations carry on
activities in the Eastern District of Pennsylvania. All of
the organizational plaintiffs share as a common objective
the separation of church and state and the opposition to
the use of public funds for the support in whole or in part
of sectarian schools, or other private schools whose policies
and practices, by purpose or effect, exclude or otherwise
discriminate against persons by reason of race or religion.
A10 Complaint
The National Association for the Advancement of Colored
People, with which the plaintiff Pennsylvania State Con-
ference of the National Association for the Advancement
of Colored People is affiliated, is an organization whose
purpose it is to seek the elimination of racial discrimination
through resort to judicial proceedings and otherwise.
5. Non-public schools, including the defendant schools
are, de facto, racially segregated, either by religious re-
quirement, design, tradition, policy, quota, cost, or resi-
dential pattern, and the aid rendered to such schools will
perpetuate and promote such racial segregation in that said
subsidy will further enable private schools to increase their
enrollment, which increase in enrollment will be exclusively
or almost exclusively white which, in turn, will increase the
percentage of Negro enrollment in the public schools, thus
aggrevating said de facto segregation and, in turn, strength-
ening the preference of many white parents to enroll their
children in non-public schools (by reason of the racial prej-
udice of said parents or because the public schools will
necessarily become inferior by reason of obtaining a smaller
percentage of the total funds which the community is pre-
pared to commit for education), which will, in turn, generate
political presures for even greater tax aid to private
schools, justified by their increased enrollment, with the
ultimate result of promoting two school systems in the
Kastern District of Pennsylvania—a public schoo! system
predominantly black, poor and inferior, and a non-public
school system predominantly white, affluent and superior.
6. Each of the individual plaintiffs is a citizen and tax-
payer in the United States and in the Commonwealth of
Pennsylvania and is resident in the Eastern District of
Pennsylvania. Plaintiff Alton J. Lemon is a Negro parent
of a child attending a public school in Pennsylvania and
sues herein in his own behalf and in behalf of others simi-
Complaint All
larly situated. It is against the religious conscience of each
of the plaintiffs to be forced by operation of the taxing
power into contributing to the propagation of religion or
for the support of sectarian schools.
7. Defendant David H. Kurtzman is Superintendent of
Public Instruction of the Commonwealth of Pennsylvania
and is sued herein in that capacity. Defendant Grace Sloan
is State Treasurer of the Commonwealth of Pennsylvania
and is sued herein in that capacity. Each of the institu-
tional defendants is a secrtarian educational institution at
the elementary or secondary level situated and operating
within the Eastern District of Pennsylvania. They are
sued herein as representative of all sectarian educational
institutions in the Commonwealth of Pennsylvania and of
all educational institutions in the Commonwealth of Penn-
sylvania whose policies and practices, by purpose or effect,
exclude from admission or otherwise discriminate against
persons by reason of race or religion, the number of such
sectarian and other educational institutions being too nu-
merous to be conveniently joined as defendants in this suit.
II. Factuat ALLEGATIONS.
8. On June 19, 1968 the Governor of the Commonwealth
of Pennsylvania signed into law Act 109 of the Laws of
Pennsylvania, 1968, known as the Nonpublic Elementary
and Secondary Education Act, effective July 1, 1968, herein-
after referred to as the Act. (The text of the Act is set
forth herein as Appendix A.) The Act purports to em-
power the State Superintendent of Public Instruction to
contract for the purchase of secular education services from
non-public schools located in the Commonwealth of Penn-
sylvania and authorizes him te promulgate rules and regu-
lations to effectuate this purpose.
ra PRR TR ee TTS ee Me a ee os Ct i i eae Ste soil al ae atl ats tc hie Fai ais vers er
Di Te Be ena ee PE Oe 4 u eli pat emis Hee eee Cee ee ee er pe ea .
its Doh 67. *
SRE Bs iin veces
A12 Complaint
9. The Act further provides that revenues from State
harness racing and State horse racing shall be used to
finance the operations of the Act.
10. All revenues from State harness racing and State
horse racing are funds which are the sole property of the
Commonwealth of Pennsylvania.
11. In December, 1968 the defendant, David H. Kurtz-
man, in his capacity as State Superintendent of Public
Instruction of the Commonwealth of Pennsylvania and
acting pursuant to the authority of the Act, issued Rules
and Regulations for the effectuation of the purposes of
the Act.
12. The Act on its face and as applied by the defendant
State Superintendent of Public Instruction and the de-
fendant State Treasurer authorizes payment thereunder for
‘¢secular educational services’? which are furnished as pa?
of the regular program and curriculum of the respect've
schools and are limited to children regularly enrolled as
pupils in the said schools and subject to the sectarian dis-
cipline and teaching of said schools.
13. The Act on its face and as applied by the defendant
State Superintendent of Public Instruction and the de-
fendant State Treasurer authorizes payment thereunder to
sectarian educational institutions which (1) are controlled
by churches or religious organizations, (2) have as their
purpose the teaching, propagation and promotion of a par-
ticular religious faith, and (3) conduct their operations,
curriculums and programs to fulfill that purpose. On in-
formation and belief, each of the institutional defendants
herein and most of the other educational institutions which
have applied for payments under the Act are sectarian edu-
cational institutions which are (1) controlled by churches
or religious organizations, (2) have as their purpose the
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Complaint Al13
teaching, propagation and promotion of a particular re-
ligious faith, and (3) conduct their operations, curriculums
and programs to fulfill that purpose.
14. The Act on its face and as applied by the defendant
State Superintendent of Public Instruction and the defend-
ant State Treasurer authorizes payments thereunder to
private schools whose policies and practices, by purpose or
effect, exclude from admission or otherwise discriminate
against persons by reason of race or religion. On informa-
tion and belief, each of the institutional defendants herein
and most of the other educational institutions which have
applied for payments under the Act are private institutions
whose policies and practices, by purpose or effect, exclude
from admission or otherwise discriminate against persons
by reason of race or religion.
15. The Act on its face and as applied by the defendant
State Superintendent of Public Instruction and the defend-
ant State Treasurer authorizes payments thereunder to
private schools which, by purpose or effect, discriminate by
reason of race or religion in the employment of teachers
and other persons to administer the educational services
rendered by the school, including the educational services
specified in the Act. On information and belief, each of the
institutional defendants herein and most of the other edu-
cational institutions which have applied for payments under
the Act are private institutions which, by purpose or effect,
discriminate by reason of race or religion in the employment
of teachers and other persons to administer the educational
services specified in the Act.
16. Each of the institutional defendants has applied to
the defendant State Superintendent of Public Instruction
for payments under the Act as follows:
Al4 Complaint
St. Anthony’s Roman Catholic School
West Third Street
Chester, Pennsylvania $ 2,444.31
Archbishop Woods Girls High School
655 York Road
Warminster, Pennsylvania 46,447.21
Ukrainian Catholic Holy Ghost School
Third and Booth Streets
Chester, Pennsylvania 5,680.85
Germantown Lutheran Academy
School House Lane and Green Street
Philadelphia, Pennsylvania 31,775.00
Akiba Hebrew Academy
223 N. Highland Avenue
Merion Station, Pennsylvania 88,022.67
Philadelphia Montgomery Christian
Academy
Greenwood Avenue
Wyncote, Pennsylvania 32,308.00
Beth Jacobs Schools of Philadelphia
Germantown Branch
143 W. Walnut Lane
Philadelphia, Pennsylvania 67,700.00
Other private and sectarian educational institutions have
applied for payments under the Act in the total amount of
$16,833,884.32.
17. Unless enjoined by this Court the defendant State
Superintendent of Public Instruction will approve for pay-
ment and the defendant State Treasurer will pay all or part
of said sums to the respective private and sectarian schools
and will in the future continue to pay large sums in effec-
tuation of the purposes of the Act.
Complaint Al5
III. Causes or Action.
18. First Count: The Pennsylvania Nonpublic Elemen-
tary and Secondary Education Act on its face and as ap-
plied by the defendant State Superintendent of Public
Instruction and the defendant State Treasurer is a law
respecting an establishment of religion in violation of the
First Amendment to the United States Constitution as made
applicable to the States by the Fourteenth Amendment in
that it (a) provides for direct financial aid out of state
funds to sectarian schools, (b) finances and participates in
the blending of sectarian and secular instruction, (c) has
as its purpose the advancement of religion, and (d) has as
its primary effect the advancement of religion.
19. Second Count: The Act on its face and as applied
by the defendant State Superintendent of Public Instruction
and the State Treasurer prohibits the free exercise of re-
ligion on the part of the individual plaintiffs by reason of
the fact that it constitutes compulsory taxation for the
support of religion or religious education institutions.
20. Third Count: The Act on its face and as applied by
the defendant State Superintendent of Public Instruction
and the defendant State Treasurer violates the Fourteenth
Amendment to the United States Constiution in that it con-
stitutes a denial of the equal protection of the laws.
IV. Oruer ALLEGATIONS.
21. This suit involves a genuine case or controversy
between the plaintiffs and the defendants.
22. The plaintiffs have no plain, speedy or adequate
remedy at law and will suffer irreparable injury unless a
preliminary and permanent injunction is granted.
23. The plaintiffs pray that the following relief be
granted:
T
(1) That a three-judge court be convened as pro- |
vided in Title 28, Sections 2281 and 2283 of the U. S.
Code to declare unconstitutional the Pennsylvania Non-
public Elementary and Secondary Education Act on its
face and as applied by the defendant State Superin-
tendent of Public Instruction and the defendant State
Treasurer.
Al6 Complaint
(2) That the defendant State Superintendent of
Public Instruction be enjoined from approving the pay-
ment of any funds under the Act or otherwise partici-
pating in its administration, and the defendant State
Treasurer be enjoined from paying any funds pursuant
to the Act.
(3) That a preliminary injunction pending the
trial of the issues be granted to the plaintiffs against
the defendants for the relief set forth herein.
(4) That the plaintiffs be granted such other and
further relief as the Court may deem just and proper.
June, 1969 i
/8/ Henry W. Sawyer, III,
Henry W. Sawyer, III
1100 Phila. National Bank Bldg.
Philadelphia, Pa. 19107,
/s/ Leo P¥eErrer,
15 East 84th Street,
New York, New York,
Counsel for Plaintiff's.
6th Sa RE iti OB NaN
Lewis H. Apuer
Counsel for Pennsylvania State Education Association
400 North Third Street
Harrisburg, Pennsylvania
Complaint Al7
‘Tomas M. Kerr, JR.
Counsel for American Civil Liberties Union
of Pennsylvania, Inc.
201 Wood Street
Pittsburgh, Pennsylvania
| Joun D. Kinin
Counsel for Pennsylvania Council of Churches
216 Pine Street
Harrisburg, Pennsylvania
Josepu B. MreranzeE
Harvey B. Levin
Counsel for Pennsylvania Jewish Community Relations
Conference
2100 Lewis Tower
Philadelphia, Pa. 19102
Franxun C. Sarispury
Counsel for Americans United for Separation of
Church and State
1701 Walnut Street
Philadelphia, Pa. 19103
Of Counsel
A18 Appendix ‘‘A’’ to Complaint
APPENDIX ‘A’? TO COMPLAINT
PENNSYLVANIA NONPUBLIC ELEMENTARY
AND SECONDARY EDUCATION ACT
Introduced as H. 2170 December 12,
1967. Amended by Senate June 11,
1968. Signed into law June 19, 1968.
AN ACT
To promote the welfare of the people of the Commonwealth
of Pennsylvania; to promote the secular education of
children of the Commonwealth of Pennsylvania attend-
ing nonpublic schools; creating a Nonpublic Elemen-
tary and Secondary Education Fund to finance the
purchase of secular educational services from non-
public schools located within the Commonwealth of
Pennsylvania for the benefit of residents of the Com-
monwealth of Pennsylvania; authorizing the Superin-
tendent of Public Instruction to enter into contracts to
carry out the intent and purposes of this act, and to
establish such rules and regulations as are necessary;
providing for the payment of administrative costs in-
cident to the operation of the act; providing procedures
for reimbursement in payment for the rendering of
secular educationai service; and designating a portion
of revenues of the State Harness Racing Fund and of
the State Horse Racing Fund as the sources of funds.
The General Assembly of the Commonwealth of
Pennsylvania hereby enacts as follows:
Section 1. Short Title-—This act shall be known and
may be cited as the ‘‘Nonpublic Elementary and Secondary
Education Act.’’
Appendix ‘‘A’’ to Complaint A19
Section 2. Legislative Finding; Declaration of Policy.
—It is hereby determined and declared as a matter of legis-
lative finding—
(1) That a crisis in elementary and secondary educa-
tion exists in the Nation and in the Commonwealth involv-
ing (i) the new recognition of our intellectual and cultural
resources as prime national assets and of the national im-
perative now to spur the maximum educational develop-
ment of every young American’s capacity; (ii) rapidly in-
creasing costs occasioned by the rise in school population,
consequent demands for more teachers and facilities, new
but costly demands, in the endeavor for excellence, upon
education generally; the general impact of inflation upon
the economy; and the struggle of the Commonwealth, com-
monly with many other states, to find sources by which to
finance education, while also attempting to bear the mount-
ing financial burden of the many other areas of modern
State governmental responsibility ;
(2) That nonpublic education in the Commonwealth
today, as during past recent decades, bears the burden of
educating more than twenty per cent of all elementary and
secondary school pupils in Pennsylvania; that the require-
ments of the compulsory school attendance laws of the Com-
monwealth are fulfilled through nonpublic education;
(3) That the elementary and secondary education of
children is today recognized as a public welfare purpose;
that nonpublic education, through providing instruction in
secular subjects, makes an important contribution to the
achieving of such public welfare purpose; that the govern-
mental duty to support the achieving of public welfare
purposes in education may be in part fulfilled through gov-
ernment’s support of those purely secular educational ob-
jectives achieved through nonpublic education ;
a
7
4
A20 Appendix ‘‘A’’ to Complaint
(4) That freedom to choose nonpublic education, |
meeting reasonable State standards, for a child is a funda.
mental parental liberty and a basic right;
(5) That the Commonwealth has the right and free.
dom, in the fulfillment of its duties, to enter into contracts _
for the purchase of needed services with persons or institu.
tions whether public or nonpublic, sectarian or nonsec.
tarian;
(6) That, should a majority of parents of the present
nonpublic school population desire to remove their children
to the public schools of the Commonwealth, an intolerable,
added financial burden to the public would result, as well as
school stoppages and long term derangement and impair.
ment of education in Pennsylvania; that such hazard to the
education of children may be substantially reduced and all
education in the Commonwealth improved through the pur.
chase herein provided of secular educational services from
Pennsylvania nonpublic schools.
Section 3. Definitions.—The following terms whenever |
used or referred to in this act shall have the following mean.
ings, except in those instances where the context clearly
indicates otherwise;
‘
(1) ‘‘Nonpublic Elementary and Secondary Education .
Fund”’ shall mean the fund created by this act.
(2) ‘‘Secular educational service’’ shall mean the pro- .
viding of instruction in a secular subject.
(3) ‘‘Secular subject’’ shall mean any course which is q
presented in the curricula of the public schools of the Com- —
monwealth and shall not include any subject matter express- _
ing religious teaching, or the morals or forms of worship of —
any sect. j
A ed cw —_ —_
- -
Appendia ‘‘A’’ to Complaint A21
(4) ‘‘Nonpublic school’’ shall mean any school, other
than a public school, within the Commonwealth of Penn-
sylvania, wherein a resident of the Commonwealth may
legally fulfill the compulsory school attendance require-
ments of law.
(5) ‘‘Purchase secular educational service’’ shall mean
the purchase by the Superintendent of Public Instruction
from a nonpublic school, pursuant to contract, of secular
educational service at the reasonable cost thereof.
(6) ‘‘Reasonable cost’’ shall mean the actual cost to a
nonpublic school of providing a secular educational service
and shall be deemed to include solely the cost pertaining
thereto of teachers’ salaries, textbooks and instructional
materials.
Section 4. Nonpublic Elementary and Secondary Edu-
cation Fund.—There is hereby created for the special pur-
pose of this act a Nonpublic Elementary and Secondary
Education Fund dedicated to the particular use of purchas-
ing secular educational service consisting of courses solely
in the following subjects: mathematics, modern foreign
languages, physical science, and physical education, pro-
vided, however, that as a condition for payment by the
Superintendent of Public Instruction for secular educa-
tional service rendered hereunder, the Superintendent of
Public Instruction shall establish that (i) solely textbooks
and other instructional materials approved by the Super-
‘intendent of Public Instruction shall have been employed in
the instruction rendered; (ii) a satisfactory level of pupil
performance in standardized tests approved by the Super-
intendent of Public Instruction, shall have been attained;
(iii) after five years following the effective date of this act,
the secular educational service for which reimbursement is
sought was rendered by teachers holding certification ap-
ee 2
A22 Appendix ‘‘A’’ to Complaint
proved by the Department of Public Instruction as equal to
the standards of this Commonwealth for teachers in the »
public schools: Provided, however, That any such service
rendered by a teacher who, at the effective date of this
act, was a full time teacher in a nonpublic school, shall be
deemed to meet this condition.
Section 5. Administration—The administration of this '
act shall be under the direction of the Superintendent of
Public Instruction, who shall establish rules and regulations
pertaining thereto, make contracts of every name and num-
ber, and execute all instruments necessary or convenient for
the purchase of secular educational service hereunder. All '
expenses incurred in connection with the administration of .
this act shall be paid solely out of the N onpublic Elementary
and Secondary Education Fund and no money raised for
the support of the public schools of the Commonwealth shall
be used in connection with the administration of this act.
Section 6. Moneys for Fund.—(a) Permanent moneys. '
Into the Nonpublic Elementary and Secondary Education ;
Fund shall be paid each year:
(1) All proceeds from horse racing up to the first ten
million dollars ($10,000,000) realized by the State Horse
Racing Fund established by the act of December 11, 1967
(Act No. 331), remaining after, and not required for, pay-
ment of all of the items of administrative cost set forth in
a subsection (b) of Section 18 of that act, plus
Nee eee
4 (2) One-half of all such horse racing proceeds in excess
: of the sum of ten million dollars ($10,000,000), the remain-
ing half thereof to be paid into the General Fund.
3 (b) Temporary moneys. Until the time that proceeds
3 in the amount of ten million dollars ($10,000,000) shall, in a
given fiscal year, have paid into the Nonpublic Elementary ,
j
if
Appendix ‘‘A’’ to Complaint A23
) and Secondary Education Fund as provided for under sub-
+ section (a) of Section 6 hereof, three-fourths of the pro-
ceeds from harness racing realized by the State Harness
Racing Fund established by the act of December 22, 1959
(P. L. 1978), as amended, remaining after and not required
for, the payments provided for in subsections (b) and (d)
. of Section 16 of that act, shall be paid into the Nonpublic
Elementary and Secondary Education Fund according to
the following formula:
(1) The entire three-fourths of the harness racing pro-
ceeds for any fiscal year shall be paid into the Nonpublic
Elementary and Secondary Education Fund until such year
as the horse racing proceeds designated by this section for
the said fund are of such amount that, combined with the
harness racing proceeds, the sum of ten million dollars
($10,000,000) shall have been realized by the Nonpublic
Elementary and Secondary Education Fund.
(2) Proceeds from harness racing shall cease to be paid
D into the Nonpublic Elementary and Secondary Education
Fund for any fiscal year in which proceeds from horse rac-
ing, designated by this section for the Nonpublic Ele-
mentary and Secondary Education Fund, shall equal ten
‘ million dollars ($10,000,00).
Moneys in the Nonpublic Elementary and Secondary
Education Fund are hereby appropriated to the Department
of Public Instruction to be used by the Superintendent of
Public Instruction solely for the purchase of secular educa-
‘ tional service hereunder and administrative exepenses per-
taining thereto as provided for in Section 5 of this act.
Section 7. Reimbursement Procedures.—(a) Requests
for reimbursement in payment for the purchase of secular
educational service hereunder shall be made on such forms
A24 Appendiaz ‘‘A’’ to Complaint
and under such conditions as the Superintendent of Public 3
Instruction shall prescribe. Any nonpublic school seeking | —
such reimbursement shall maintain such accounting pro-
cedures, including maintenance of separate funds and
accounts pertaining to the cost of secular educational
service, as to establish that it actually expended in support
of such service an amount of money equal to the amount of
money sought in reimbursement. Such accounts shall be
subject to audit by the Auditor General. Reimbursement
payments shall be made by the Superintendent of Public
Instruction in four equal installments payable on the first
day of September, December, March and June of the school
term following the school term in which the secular educa- |
tional service was rendered.
(b) Reimbursements for any fiscal year for the pur-
chase of secular educational service hereunder shall not
exceed the total amount of the moneys which were actually
paid into the Nonpublic Elementary and Secondary Educa-
tion Fund in that fiscal year.
(c) In the event that, in any fiscal year, the total
amount of moneys which were actually paid into the Non-
public Elementary and Secondary Education Fund shall be
insufficient to pay the total amount of validated requests
hereunder in reimbursement for that year, reimbursements
shall be made in that proportion which the total amount of
such requests bears to the total amount of moneys in the
Nonpublic Elementary and Secondary Education Fund.
(d) The Budget Secretary shall, by July fifteenth of
each year, certify to the Superintendent of Public Instruc-
tion, the total amount of money in the Nonpublic Elemen-
tary and Secondary Education Fund.
Section 8. Effective Date.——This act shall take effect
July 1, 1968.
Appendiaz ‘‘A’’ to Complaint A25
Section 9. Severability —If a part of this act is in-
valid, 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.
q
A26 Motion for Preliminary Injunction <
dS ate
MOTION FOR PRELIMINARY INJUNCTION.
(Title omitted in printing.)
Plaintiffs move the Court for a preliminary injunction
enjoining the defendants Superintendent of Public Instruc-
tion and State Treasurer of the Commonwealth of Penn-
sylvania, pending determination of the above-captioned
matter, from paying or processing for paying any funds
pursuant to the Pennsylvania Nonpublic Elementary and
Secondary Education Act.
Henry W. Sawyer, III
Henry W. Sawyer, III
DEFENDANT SCHOOLS’ MOTION TO DISMISS THE
COMPLAINT FOR FAILURE OF PLAIN-
TIFFS TO HAVE STANDING TO SUE.
Motion to Dismiss A27
(Title omitted in printing.)
All Defendant schools respectfully move the Court to
dismiss Plaintiffs’ Complaint and to enter a judgment of
dismissal in Defendants’ favor on the ground that Plaintiffs
do not have standing to maintain this action.
In support thereof, Defendants assign the following
reasons :
J,
Individual Plaintiff's
ALTON J. LEMON, PRISCILLA
REARDON and BETTY J. WORRELL.
1. The Complaint fails to allege that any of these
Plaintiffs have contributed to the State harness racing or
horse racing funds. Such funds are the sole source under
the Act, out of which the Commonwealth purchases secular
educational services.
2. The Complaint fails to allege facts which demon-
strate the extent to which, if any, these Plaintiffs suffer any
adverse financial effect resulting from the use of State
harness racing or horse racing funds, with which the Com-
monwealth purchases secular educational services under
the Act.
3. The Complaint fails to allege that the collection of
funds by the Commonwealth for purchases under the Act
= =
A28 Motion to Dismiss
from persons who choose to attend harness and horse rac-
ing constitutes a program of taxation to which these Plain-
tiffs were compelled to contribute.
4. The Complaint fails to allege that any funds have
been expended under the Act, except as incidental to purely
regulatory activity.
5. The Complaint fails to allege facts sufficient to
demonstrate that Plaintiff, Alton J. Lemon, has an interest,
either as a parent, or as a Negro parent, or as a parent of
a child attending a public school in Pennsylvania, sufficient
to entitle him to sue on behalf of all other persons similarly
situated.
Il.
Organizational Plaintiff's.
PENNSYLVANIA STATE EDUCATION
ASSOCIATION,
PENNSYLVANIA CONFERENCE NATIONAL
ASSOCIATION FOR THE ADVANCEMENT
OF COLORED PEOPLE,
PENNSYLVANIA COUNCIL OF CHURCHES,
PENNSYLVANIA JEWISH COMMUNITY
RELATIONS CONFERENCE,
AMERICANS UNITED FOR SEPARATION OF
CHURCH AND STATE,
AMERICAN CIVIL LIBERTIES UNION OF
PENNSYLVANIA, INC.
6. Defendants incorporate herein by reference para-
graphs 1, 2, 3, and 4 of this Motion, all of which apply with
equal force to the Plaintiff organizations.
3
Motion to Dismiss A29
7. The Complaint fails to allege that any of these
Plaintiff organizations are taxpayers.
8. The Complaint fails to allege that the Plaintiff
organizations have a personal stake in the outcome of this
litigation, apart from a common motivation to act as vol-
untary protectors of the public interest, or as ‘* private
attorneys general.’’ The sharing of common viewpoints
(Complaint, Paragraph 4) does not constitute an interest
which entitles the Plaintiff organizations to complain
herein.
9. The Complaint fails to allege any facts sufficient to
show that the Plaintiff organizations bring this action due
to circumstances rendering it impossible or perilous for any
one of their respective members to sue.
10. The Complaint fails to allege facts showing that
Plaintiffs Pennsylvania State Education Association or
Pennsylvania Conference National Association for the Ad-
vancement of Colored People possess specific organizational
purposes and objectives expressly relating to their interest
and competence with respect to the concept of freedom of
religion or the governmental establishment of religion.
11. The Complaint fails to allege facts showing that
any of the Plaintiff organizations, except the Pennsylvania
Conference National Association for the Advancement of
Colored People, possess specific organizational purposes
and objectives expressly relating to their interest and com-
petence with respect to racial segregation.
; 12. The undersigned are authorized to state that all
the Defendant schools join in the foregoing Motion.
A30 Motion to Dismiss
Wuererore, Defendant schools respectfully pray the
Bauu & SKELLy,
Wu B. Batt,
Attorney for Defendant Archbishop
Wood High School for Girls.
James KE. Gauuacuer, JR. anp
C. Ciark Hopeson, Jr.,
C. Cuark Hopeson, Jr.,
Attorneys for Defendants St. Anthony’s
Roman Catholic Church School and
Ukrainian Catholic School.
‘DE
Court to enter an Order dismissing Plaintiffs’ Complaint ;
and to enter a Judgment of Dismissal in Defendants’ favor. _
dis
P
4
dis
do
rea
Amended Motion to Dismiss A3l
DEFENDANT SCHOOLS’ MOTION TO DISMISS THE
COMPLAINT FOR FAILURE OF PLAINTIFFS
TO HAVE STANDING TO SUE.
(Title Omitted in Printing.)
AMENDED MOTION.
All Defendant schools respectfully move the Court to
dismiss Plaintiffs’ Complaint and to enter a judgment of
dismissal in Defendants’ favor on the ground that Plaintiffs
do not have standing to maintain this action.
In support thereof, Defendants assign the following
reasous:
4
Individual Plaintiffs.
ALTON J. LEMON, PRISCILLA REARDON and
BETTY J. WORRELL.
1. The Complaint fails to allege that any of these
Plaintiffs have contributed to the State harness racing or
horse racing funds. Such funds are the sole source under
the Act, out of which the Commonwealth purchases secular
educational services.
2. The Complaint fails to allege facts which demonstrate
the extent to which, if any, these Plaintiffs suffer any ad-
verse financial effect resulting from the use of State harness
racing or horse racing funds, with which the Commonwealth
purchases secular educational services under the Act.
3. The Complaint fails to allege that the collection of
funds by the Commonwealth for purchases under the Act
from persons who choose to attend harness and horse rac-
ing constitutes a program of taxation to which these Plain-
tiffs were compelled to contribute.
A32 Amended Motion to Dismiss
4. The Complaint fails to allege that any funds have |
been expended under the Act, except as incidental to purely
regulatory activity.
5. The Complaint fails to allege facts sufficient to dem. —
onstrate that Plaintiff, Alton J. Lemon, has an interest, either —
as a parent, or as a Negro parent, or as a parent of a child |
attending a public school in Pennsylvania, sufficient to en-
title him to sue on behalf of all other persons similarly
situated.
5A. The Complaint fails to allege any facts showing a
personal stake, or adverse interest, on the part of these —
Plaintiffs on the issue of the denial of the equal protection
of the laws.
II.
Organizational Plaintiffs.
PENNSYLVANIA STATE EDUCATION
ASSOCIATION,
PENNSYLVANIA CONFERENCE NATIONAL
ASSOCIATION FOR THE ADVANCEMENT
OF COLORED PEOPLE,
PENNSYLVANIA COUNCIL OF CHURCHES,
PENNSYLVANIA JEWISH COMMUNITY
RELATIONS CONFERENCE,
AMERICANS UNITED FOR SEPARATION
OF CHURCH AND STATE,
AMERICAN CIVIL LIBERTIES UNION
OF PENNSYLVANIA, INC.
}
6. Defendants incorporate herein by reference para- i
graphs 1, 2, 3, and 4 of this Motion, all of which apply with 4
equal force to the Plaintiff organizations. 3
7. The Complaint fails to allege that any of these Plain- i
tiff organizations are taxpayers. 4
ti
Amended Motion to Dismiss A33
8. The Complaint fails to allege that the Plaintiff organi-
zations have a personal stake in the outcome of this litiga-
tion, apart from a common motivation to act as voluntary
protectors of the public interest, or as ‘‘private attorneys
general’, The sharing of common viewpoints (Complaint,
Paragraph 4) does not constitute an interest which entitles
the Plaintiff organizations to complain herein.
9. The Complaint fails to allege any facts sufficient to
show that the Plaintiff organizations bring this action due
to circumstances rendering it impossible or perilous for any
one of their respective members to sue.
10. The Complaint fails to allege facts showing that
Plaintiffs Pennsylvania State Education Association or
Pennsylvania Conference National Association for the Ad-
vancement of Colored People possess specific organizational
purposes and objectives expressly relating to their interest
and competence with respect to the concept of freedom of
religion or the governmental establishment of religion.
11. The Complaint fails to allege facts showing that any
of the Plaintiff organizations, except the Pennsylvania
Conference National Association for the Advancement of
Colored People, possess specifie organizational purposes
and objectives expressly relating to their interest and com-
petence with respect to racial segregation.
11A. The Complaint fails to allege any facts showing a
personal stake, or adverse interest, on the part of these
Plaintiffs on the issue of the denial of the equal protection
of the laws.
12. The undersigned are authorized to state that all the
Defendant schools join in the foregoing Motion.
A34 Amended Motion to Dismiss
Wuererore, Defendant schools respectfully pray the 4
Court to enter an Order dismissing Plaintiffs’ Complaint
and to enter a Judgment of Dismissal in Defendants’ favor.
Baty & SKELLy,
Wituum B. Batt, ;
Attorney for Defendant Archbishop i
Wood High School for Girls. ;
James E. Gautacuer, Jr. anp
C. CLarKk Honeson, JR.,
James E, Gauiacuer, Jr. ;
Attorneys for Defendants St. Anthony’s
Roman Catholic Church School and —
Ukrainian Catholic School.
Motion to Dismiss A35
DEFENDANT SCHOOLS’ MOTION TO DISMISS
PLAINTIFFS’ COMPLAINT FOR FAILURE
TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED.
(Title Omitted in Printing.)
Defendant schools respectfully move the Court to dis-
miss Plaintiffs’ Complaint and to enter a judgment of dis-
missal in Defendants’ favor. Insupport thereof, Defendants
assign the following reasons:
1.
FIRST COUNT.
PARAGRAPH 18—ESTABLISHMENT OF RELIGION.
1. The allegation, ‘‘(a)’’, of Paragraph 18, that the Act
is unconstitutional on its face and as applied because it
‘provides for direct financial aid out of State funds to
sectarian schools”’ fails to state a claim since the Act, which
expresses the public policy of the Commonwealth, achieves
solely the public and secular legislative purpose of provid-
ing secular education to students.
2. The allegation, ‘‘(b)’’, of Paragraph 18, that the Act
is unconstitutional on its face and as applied because it
‘finances and participates in the blending of sectarian and
secular instruction’’ fails to state a claim since the Act has
an express secular legislative purpose and a primary effect
which does not advance religion.
A36 Motion to Dismiss
3. The Complaint fails to allege any facts sufficient to
support the bare conclusory assertion made in **(c)’? of
Paragraph 18, that the Act, on its face, ‘‘has as its purpose
the advancement of religion’’. :
ALDEN NEL ens REIS LAE
4. The allegation, ‘‘(c)’’ of Paragraph 18, that the Act _
is unconstitutional as applied because it ‘‘has as its purpose
the advancement of religion”’ fails to state a claim because
the constitutionality of the application of a statute is not
determined by the constitutionality of its stated or implied :
purpose. 4
5. The allegation, ‘‘(d)’’ of Paragraph 18, that the
Act is unconstitutional on its face because it ‘‘has as its
primary effect the advancement of religion’’ fails to state
a claim because the effects of a statute’s application do not
determine the constitutionality of the statute on its face.
6. The Complaint fails to allege any facts sufficient to \%
support the bare conclusory assertion made in ‘‘(d)’’ of )
Paragraph 18, that the Act ‘‘has as its primary effect the
advancement of religion’’.
II.
SECOND COUNT
PARAGRAPH 19—FREE EXERCISE OF RELIGION.
7. The Complaint fails to allege facts sufficient to show
that the Act on its face ‘‘constitutes compulsory taxation”’,
as alleged in Paragraph 19. Collections pursuant to the
Act, with which the Commonwealth will make purchases
under the Act, are from persons who freely choose to attend
horse and harness races and does not constitute a program
of compulsory taxation.
Motion to Dismiss A37
8. The Complaint fails to allege facts sufficient to show
- that the Act on its face requires or permits support of
- religion or religious educational institutions.
9. The allegation of Paragraph 19, that the Act is un-
_ constitutional as applied because it ‘‘constitutes compulsory
- taxation for the support of religion or religious educational
- institutions’’ is insufficient as a matter of law, in that the
Act, expressing the public policy of the Commonwealth,
_ achieves solely the public and secular legislative purpose of
_ providing secular education to students.
III.
THIRD COUNT.
PARAGRAPH 20—EQUAL PROTECTION OF THE
LAWS.
10. The Complaint fails to allege that the Act on its
face, either expressly or by implication, requires or permits
any discriminatory State action.
11. The Complaint fails to allege facts sufficient to
show that the Act, as applied, results in any discriminatory
State action.
12. The Complaint fails to allege either expressly or
by implication that the Act requires or permits an invidious
classification or discrimination of any kind based upon race.
13. The allegations of the Complaint that the Common-
wealth pays subsidy to schools which are de facto racially
segregated fails to constitute an allegation of a denial of
the equal protection of the laws.
14. The undersigned are authorized to state all the
Defendant schools join in the foregoing Motion.
A38 Motion to Dismiss
Wuererort, Defendant schools respectfully pray the
Court to enter an Order dismissing Plaintiffs’ Complain —
for failure to state a claim upon which relief can be grante| —
and to enter a Judgment of Dismissal in Defendants’ favor, —
Bau & SKELLy,
Wuuam B. Batt,
Attorneys for Defendant, Arch.
bishop Wood High School for
Girls.
James E. Gautacuer, Jr., and
C. Ciarx Hopeson, Jr.,
C. CuarK Hopsson, Jr.,
Attorneys for Defendants St, :
Anthony’s Roman Catholic :
Church School and Ukrainian —
Catholic School.
{
US
ee
PO Be es hE INE MAT a D8 So
eA
Motion Under Rule 23(c) A39
DEFENDANT SCHOOLS’ MOTION UNDER RULE 23(c).
(Title omitted in printing.)
Defendant schools respectfully move the Court for a
determination under Rule 23(c) that this action shall not
be maintained as a class action, and assigns therefor the
following reasons:
1. In paragraph seven of the Complaint, Plaintiffs
allege that the Defendant schools are sued in this action ‘‘as
representative of all sectarian educational institutions in
the Commonwealth of Pennsylvania and of all educational
institutions in the Commonwealth of Pennsylvania whose
policies and practices, by purpose or effect, exclude from
admission or otherwise discriminate against persons by
reason of race or religion. . . .”’
2. The statewide group thus described in the Complaint
does not constitute a class in relation to the three causes of
action stated in the Complaint. The group includes sec-
tarian schools, inter-denominational schools, non-sectarian
schools, public schools, non-public schools, kindergartens,
elementary schools, secondary schools, institutions of
higher learning, schools for exceptional children, profes-
sional schools, trade schools, business schools and seminar-
ies, that is, schools having in common solely the fact that
they are educational institutions in the Commonwealth of
Pennsylvania.
3. As to each of the causes of action set forth in the
Complaint, no finding of fact respecting how the Act is
applied in any one of the Defendant schools can be a finding
of fact which is binding on any other Defendant school or
any other member of the alleged class, including all schools
under contract with the Commonwealth pursuant to the Act.
a ep
A40 Motion Under Rule 23(c)
bh eg aS
4. There are 1181 schools located in 55 out of the 67
counties of Pennsylvania which have entered into individual D
contracts with the Commonwealth under the Act. Among
these schools, there exists an extremely wide diversity re-
specting religion and race, educational policies, instruc-
tional practices, admissions policies, responses to needs of
the particular community served, courses offered and
faculty membership.
5. As among the Defendant schools, there are questions
of law and fact, respecting each cause of action, not common
to all of these schools.
6. As between the Defendant schools, and the other
members of the alleged class (including all schools under
contract with the Commonwealth pursuant to the Act)
there are questions of law and fact respecting each cause
of action, not common to all.
7. The defenses of the Defendant schools are not
typical of the defenses that might be asserted by members |
of the alleged class (including all schools under contract
with the Commonwealth pursuant to the Act) of which the
Defendant schools are alleged to be representative.
8. The Defendant schools cannot adequately protect the
interests of the members of the alleged class, including all
schools under contract with the Commonwealth pursuant to
the Act.
9. Plaintiffs, having sued the Defendant schools as
representatives of a class, have the burden of demonstrat-
ing that this action may be maintained under Rule 23 of
the Federal Rules of Civil Procedure. Such a determina-
tion may properly be made only after hearing before the
Court.
10. The undersigned are authorized to state that all
Defendant schools join in the foregoing Motion.
Motion Under Rule 23(c) A41
WuererorE, the Defendant schools respectfully pray
the Court:
(1) To make a determination that this action may
not be maintained as a class action, or
(2) that if the Court upon the face of the Com-
plaint and of this Motion cannot so rule, that it hold
a hearing prior to any determination under Rule 23, or
(3) in the alternative, that it dismiss so much of
Plaintiffs’ Complaint as relates to the representative-
ness of the Defendant schools and Plaintiffs’ claims
that the Act is unconstitutional as applied, and proceed
forthwith to a determination of the constitutionality of
the Act on its face.
Bau & SKELLY,
Wi.usm B. Bat,
Attorney for Defendant Archbishop
Wood High School for Girls.
JAMES FE. GALLAGHER, JR. AND
C. Cuark Hopeson, Jr.,
C. CLarK Honeson, Jr.,
Attorneys for Defendants St. Anthony’s
Roman Catholic Church School and
Ukrainian Catholic School.
A42 Answer to Motion
ANSWER TO DEFENDANTS’ MOTION
UNDER RULE 23(c).
(Title Omitted in Printing.)
In answer to the defendant schools’ Motion for a ruling *
that the above action not be maintained as a class action, —
plaintiff makes the following answer: Plaintiff agrees that
the action will not be maintained as a class action under
Rule 23(c) of the Federal Rules of Civil Procedure.
Henry W. Sawyer, III,
Henry W. Sawyer, III,
Attorney for Plaintiffs, —
4
Motion to Intervene A43
MOTION OF THE PENNSYLVANIA ASSOCIATION
OF INDEPENDENT SCHOOLS TO INTERVENE
AS A PARTY DEFENDANT.
(Title Omitted in Printing.)
The Pennsylvania Association of Independent Schools
by its Attorneys, Duane, Morris & Heckscher, moves for
leave to intervene as a defendant in the above action on
the grounds, set forth more fully below:
1. The Pennsylvania Association of Independent
Schools (PAIS) is a non-profit corporation organized and
existing under the laws of Pennsylvania as an association
concerned with matters affecting the interests of its mem-
ber schools in respect of elementary and secondary educa-
tion in this Commonwealth. Its membership consists of 94
elementary and secondary schools located throughout the
Commonwealth. A list of the member schools is attached
as Exhibit ‘‘A’’.
2. All member schools of PAIS are nonpublic schools
within the meaning of Section 5603 (paragraph 4) and ad-
mit all qualified students without regard to race, creed or
color.
3. All member schools of PAIS offer courses in one or
more of the following: Mathematics, foreign language,
physical science, and physical education. Accordingly, as
nonpublic schools, they are entitled under Section 5604 to
contract with the Commonwealth through the Nonpublic
Elementary and Secondary Education Fund for the pur-
chase of secular educational services in the above mentioned
course areas and to receive in payment therefor monies
from the Nonpublic Elementary and Secondary Education
Fund.
A44 Motion to Intervene
4. The plaintiffs’ complaint alleges that the Pennsyl-
vania Nonpublic Elementary and Secondary Education Act
is unconstitutional both on its face and as applied and seeks
to prevent the payment of any monies to nonpublic schools .__
under the above mentioned act.
5. PAIS, on behalf of its member schools has interests
relating to the property which is the subject matter of the
above action and is so situated that the disposition of the
action may as a practical matter impair or impede the ability
of its members to protect those interests unless your peti-
tioners are granted leave to intervene.
6. The member schools of the PAIS have, or may have,
defenses to the plaintiffs’ claims which present both ques-
tions of law and of fact which are common to the above
action,
7. Granting the PAIS leave to intervene in the above
action will not delay or prejudice the adjudication of the
rights of any of the original parties.
Duane, Morris & Heckscuer,
By:
Henry T. Reath,
Attorneys for Applicant for
Intervention, Pennsylvania
Association of Independent
Schools.
ae a
Motion to Intervene A45
List or SCHOOLS IN THE PENNA. ASSOCIATION OF
INDEPENDENT SCHOOLS.
Abington Friends School
Jenkintown, Penna. 19046
Academy of the Assumption
3480 W. School house Lane
Philadelphia, Penna. 19144
Academy of the New Church
Second Street Pike
Bryn Athyn, Pa. 19009
Academy of Notre Dame DeNamur
Sproul and Godfrey Roads
Villanova, Penna. 19085
Agnes Irwin School
Rosemont, Penna. 19010
Akiba Hebrew Academy
223 N. Highland Avenue
Merion, Penna. 19066
The Baldwin School
Bryn Mawr, Penna. 19010
The Booth School
Rosemont, Penna. 19010
The Buckingham Friends School
Lahaska, Penna. 18931
Carson Long Institute
New Bloomfield, Penna. 17068
Cecilian Academy
144 W. Carpenter Lane
Philadelphia, Pa. 19119
EN ne NaN
A46
Motion to Intervene
Charles E. Ellis School for Girls :
Newtown Square, Penna. 19073 :
Chestnut Hill Academy
Philadelphia, Pa. 19118
Convent School of the Sacred Heart
City Line and Haverford Road
Philadelphia, Penna. 19151
Convent School of the Sacred Heart
Eden Hall, Philadelphia, Pa, 19114
Delaware County Christian School
Malin Road
Newtown Square, Penna. 19073
Divine Word Seminary
East Ridge Road
Girard, Penna. 16417
The Ellis School
6425 Fifth Avenue
Pittsburgh, Pa. 15206
The Episcopal Academy
City Line and Berwick Road
Philadelphia, Pa. 19131
The Erie Day School
1372 W. Sixth Street
Erie, Penna. 16505
Friends Central School P
68th and City Line Avenue
Philadelphia, Pa. 19151 |
Friends Select School
1421 Arch Street |
Philadelphia, Pa. 19102 t
7
Motion to Intervene
George School
George School, Pa. 18940
Germantown Academy
Fort Washington, Pa. 19034
Germantown Friends School
31 W. Coulter Street
Philadelphia, Pa. 19144
Girard College High School
Girard Avenue at Corinthian Street
Philadelphia, Penna. 19130
Grier School
Tyrone, Pa. 16686
Gwynedd-Merey Academy
Gwynedd Valley, Pa. 19437
Harrisburg Academy
Box 583, Harrisburg, Pa. 17043
Haverford School
Haverford, Pa. 19041
Haverford Friends School
Buck Lane
Haverford, Pa. 19041
Hill School
Pottstown, Pa. 19464
Kimberton Farm School
Phoenixville, Pa. 19460
Kiskiminetas Springs School
Saltsburg, Penna. 15681
Lancaster Country Day School
Lancaster, Pennsylvania 17603
A47
Motion to Intervene
The Lankenau School
3201 W. School House Lane
Philadelphia, Pa. 19144
La Salle College High School
8605 Cheltenham Avenue
Philadelphia, Penna. 19118
Lansdowne Friends School
Lansdowne, Penna. 19050
Linden Hall
Lititz, Pa. 17543
Malvern Preparatory School
Malvern, Penna. 19355
Mater Misericordiae Academy
Merion Station, Penna. 19066
The Meadowbrook School
Meadowbrook, Pa. 19046
Media Friends School
West Third Street
Media, Pa. 19063
Melrose Academy
Our Lady of Victory Hall
Old York Road
Philadelphia, Pa. 19117
Mercersburg Academy
Mercersburg, Pa. 17236
Mercyhurst Preparatory School
538 E. Grandview Boulevard
Erie, Penna. 16504
Milton Hershey School
Hershey, Penna. 17033
Motion to Intervene A49
The Miquon School
Harts Lane
Miquon, Penna. 19452
Montgomery Country Day School
Wynnewood, Penna. 19096
Moravian Preparatory School
Bethlehem, Penna. 18018
Moravian Seminary for Girls
Bethlehem, Penna. 18017
Mount Saint Joseph Academy
Flourtown, Penna. 19031
Newtown Friends School
Newtown, Penna. 18940
Oak Lane Day School
Blue Bell, Penna. 19422
Our Lady of Mercy Academy
301 College Park Drive
Monroeville, Pa. 15146
Overbrook School for the Blind
64th and Malvern Streets
Philadelphia, Penna. 19151
Penn Hall Preparatory School
Chambersburg, Penna. 17201
Pennsylvania School for the Deaf
7500 Germantown Avenue
Philadelphia, Penna. 19119
Perkiomen School
Pennsburg, Penna. 18073
Phelps School
Malvern, Pa. 19355
Motion to Intervene
The Rev. Martin Pryke
Executive Vice President
The Academy of the New Church
Bryn Athyn, Pa. 19009
Saint Benedict Academy
330 E. 10th Street
Erie, Penna. 16503
Saint Benedict’s Academy
4530 Perrysville Avenue
Pittsburgh, Penna. 15229
Saint Edmund’s Academy
5705 Darlington Road
Pittsburgh, Penna. 15217
Saint Francis Academy
1401 Hamilton Road
Pittsburgh, Penna. 15234
Saint John Kanty Preparatory School
3002 E. 38th Street
Erie, Penna. 16501
Saint Joseph’s Preparatory School
18th and Thompson Streets
Philadelphia, Penna. 19121
Saint Mary’s Academy
5401 Old York Road
Philadelphia, Pa. 19141
Saint Mary’s Seminary
EK. Division Street
North East, Penna. 16428
Saint Vincent College Preparatory School
Latrobe, Penna. 15650
- a ee
SR eee
Motion to Intervene A51
The School in Rose Valley
Moylan, Penna. 19063
School of the Holy Child
Rosemont, Penna. 19010
School of the Holy Child
Sharon Hill, Penna. 19079
Scranton Preparatory School
Seranton, Penna. 18509
Sewickley Academy
Sewickley, Penna. 15143
Shady Side Academy
423 Fox Chapel Road
Pittsburgh, Pa. 15221
The Shipley School
Bryn Mawr, Penna. 19010
Solebury School
New Hope, Pa. 18938
The Stevens School
Crefeld and Laughlin Streets
Philadelphia, Pa. 19118
The Swain Country Day School
1100 S. 24th Street
Allentown, Pa. 18103
Swarthmore Presbyterian Nursery School
Harvard Avenue
Swarthmore, Pa. 19081
Valley Forge Military Academy
Wayne, Penna. 19087
Motion to Intervene
Valley School of Ligonier
Box 616, Ligonier
Pennsylvania 15658
The Vanguard School
Box 423, Paoli, Pa. 19301
Villa Maria Academy
Malvern, Penna. 19355
Villa Maria Academy
2403 West Lake Road
Erie, Pa. 16505
Westtown School
Westtown, Penna. 19395
The William Penn Charter School
School Lane
Philadelphia, Pa. 19144
The Wyndcroft School
Rosedale Drive
Pottstown, Penna. 19464
York Country Day School
1071 Country Club Road
York, Penna. 17403
Winchester-Thurston School
555 Morewood Avenue
Pittsburgh, Penna. 15213
Pre-Trial Order A53
PRE-TRIAL ORDER.
(Title omitted in printing.)
Anp Now, this 20th day of August, 1969, following pre-
trial conference held the 18th day of August, 1969, Ir Is
OrpEeRED as follows:
1. The motion of the Pennsylvania Association of In-
- dependent Schools to intervene as a party defendant is
_Grantep for the purpose of argument on defendants’ mo-
‘tions to dismiss, without prejudice to said Association’s
application for more general intervention after disposition
f the motions to dismiss.
9. Defendants’ motions to dismiss for failure to state
a cause of action, for failure to have standing to sue, and
defendants’ motions to strike a portion of the complaint and
for a more definite statement (referred to as Points 7, 8,
10 and 12 in ‘‘Plaintiff’s Suggested Procedure and Sched-
ule’? as submitted at the August 18, 1969 conference), shall
be listed for argument at a date to be fixed by the Court
after submission of briefs. Briefs for the moving parties
shall be filed on or before September 15, 1969, and the
answering briefs of plaintiffs shall be filed on or before
_ September 24, 1969. The briefs shall cover, in addition to
_ the motions to dismiss, the question of whether the case is
_ appropriate to be heard by three judges or one judge in the
- event the motions to dismiss are denied.
rs eee ee ee ee
f
a
ETE ae
3. Discovery:
(a) Objections by defendants to plaintiffs’ inter-
rogatories shall be filed within thirty (30) days. In
the meantime, defendants shall compile the information for
the filing of answers to interrogatories so that answers
thereto may be filed promptly after disposition of the mo-
tions to dismiss in the event and to the extent that answers
thereto shall be directed by the Court.
A54 Pre-Trial Order
(b) Vineent J. McCoola shall be deposed at Har.
risburg on or before October 1, 1969.
ahaa. iN aa
4. In the light of plaintiffs’ “Answers to Defendant
Motion under Rule 23(c)”’, Ir Is FurrHer ORDERED (a)
that the within action shall not be maintained as a clas ;
action; and (b) that the last sentence of paragraph 7 of th —
complaint and similar ailegations of like nature contained in :
the complaint need not be answered by defendants. ;
=)
BY THE COURT, tb
Wiuiam H. Hastie, F
William H. Hastie, Cir. Chief Judge, ; o
Aurrep L. Luonco, :
Alfred L. Luongo, J/.,
E. Mac Trourmay, ee
E. Mac Troutman, J., _
Motion to Dismiss A55
———
MOTION TO DISMISS.
(Title Omitted in Printing.)
| The Defendants, David H. Kurtzman as Superintendent
_ of Public Instruction of the Commonwealth of Pennsylvania
and Grace M. Sloan as State Treasurer of the Common-
wealth of Pennsylvania, by their attorneys, respectfully
move this Honorable Court to dismiss Plaintiffs’ Complaint
and to enter judgment for Defendants and assign therefor
the following reasons:
1. The Complaint fails to state a cause of action upon
which relief can be granted.
2. Act No. 109, the Non-Public Elementary and Sec-
ondary Education Act approved by the Governor of Penn-
sylvania on June 19, 1968, represents a constitutional exer-
cise of the sovereign authority of the Commonwealth of
_ Pennsylvania.
3. The Plaintiffs seeks an adjudication of general un-
constitutionality of a statute on the basis of conjectural
and speculative consequences possibly resulting from the
purchase of educational services from certain named
_ defendants.
| 4. The general constitutionality of a statute may not be
_ determined on the basis of its anticipated application to a
_ particular case or to a limited class.
5. Plaintiffs’ expectation of an unconstitutional inter-
_ pretation and application of Act No. 109 by officials charged
- with its administration negates the presumption that state
A56 Motion to Dismiss
officials will interpret and apply state statutes in a manne
consistent with constitutional directives. :
Respectfully submitted,
Epwarp F'RtepMan,
Edward Friedman,
Counsel General,
Wuum C. Sennett,
William C. Sennett,
Attorney General,
Attorneys for Defendant
Kurtzman and Sloan, —
nti :
Amended Complaint A57
AMENDED COMPLAINT.
(Title Omitted in Printing.)
Now come the plaintiffs by their attorney, Henry W.
Sawyer, III, and, no responsive pleading having been filed
thereto, amend the Complaint in the above-captioned case
as follows:
1. By adding, after the second sentence in Paragraph
6, the following:
On September 20, 1969, Alton J. Lemon went to
Liberty Bell Park, a harness racing track, where
he purchased a ticket of admission and paid the
tax thereon.
2. The word ‘‘representative’’ in the fourth sentence
of Paragraph 7 is deleted and the word ‘‘typical’’ is sub-
stituted therefor.
Henry W. Sawyers, III,
Henry W. Sawyer, III,
Attorney for Plaintiffs.
A58 Plaintiffs’ Memorandum
PLAINTIFFS’ MEMORANDUM ON THE NECESSITY
OF A THREE-JUDGE COURT.
(Title Omitted in Printing.)
The defendants’ briefs with respect to both the three.
judge court and the meaning of the phrase ‘‘as applied”? in
the complaint purport to believe that, by including seven
particular recipient schools as defendants the plaintiffs are
suggesting that only in the Act’s application to these par-
ticular schools (by reason of some peculiar aberration) is
the Act unconstitutional as applied. On the other hand, the
complaint constantly alleges that these schools are repre-
sentative (i.e. typical), of the kinds of schools which are
receiving the aid provided by Act 109, and yet the defend-
ants move to delete these allegations. So the situation is
Te Soe een
52 0h woot eM pir Mini ip es TS te tla chin ae ghee
that the defendants say that ‘‘the complaint concerns itself
with certain (peculiar) applications of the Act, or, it will as
soon as the court strikes from it the allegations which |
negate our contention.’’
The complaint attacks a pervasive, state-wide measure, |
operating in all sixty-seven counties of the state, adminis-
tered by state-wide officials on a state-wide basis with state-
wide effects, financed by state-wide funds. Its allegations
doom the statute.
Assuming that the defendants’ mien of bemused wonder
with respect to the universality of plaintiffs’ challenge is
in good faith, let us say this: the Act is unconstitutional in
every application throughout the sixty-seven counties of
Pennsylvania, excepting only the possibility that some non-
public school can be produced which (a) is non-church re-
lated, and (b) has no ceremonial religious observances and
(c) does not discriminate on the basis of race in either
admissions or employment. If there were a dozen score of
such schools in Pennsylvania, the three-judge court would
dR elm ane Fe RAE I alee eB | cpened oh
eee ee Ee ee
Plaintiffs’ Memorandum A59
still be called for (vs. 1140 non-public schools) ; if, in fact,
there is one it has so far escaped plaintiffs’ not totally
oblivious notice.
28 U. S. C. § 2281 requires that a three-judge court be
convened whenever a complainant seeks to restrain the
enforcement, execution, or operation of a state statute
upon the ground of unconstitutionality.” The requirement
of § 2281 is jurisdictional. It is founded on the legislative
policy of precluding the invalidation of important state
legislation by a conventional suit in equity brought before
a single federal judge. The purpose of the requirement is
to safeguard the integrity of state legislation from capri-
cious action by a single judge. Phillips v. United States,
312 U. S. 246, 61 S. Ct. 480 (1941).
In Phillips Justice Frankfurter succinctly set forth the
basic test for determining the applicability of § 2281:
‘“The crux of the business is procedural protection
against an improvident state-wide doom by a federal
court of a state’s legislative policy.’’
Id. at 251.
The basic determination is whether ‘‘state-wide doom”’
is involved or only illegal executive action which rests on
an otherwise constitutional basis. Jd. at 250.
When the allegations of the complaint in the present
case are examined together with the statutory provisions
*§2281. Injunction against enforcement of State statute;
three-judge court required
An interlocutory or permanent injunction restraining the en-
forcement, operation or execution of any State statute by restrain-
ing the action of any officer of such State in the enforcement or
execution of such statute or of an order made by an administrative
board or commission acting under State statutes, shall not be granted
by any district court or judge thereof upon the ground of the un-
constitutionality of such statute unless the application therefor is
heard and determined by a district court of three judges under
section 2284 of this title.
A60 Plaintiffs’ Memorandum
attacked it is clear that this case is within the mandate of :
§ 2281. The complaint, by direct allegation, attacks the
basic constitutionality of a statute which provides for state
wide aid to private schools. That statute is challenged both —
on its face and as applied as violative of the first and four.
teenth amendments. Thus, the entire statutory scheme is
claimed to be unconstitutional and is sought to be placed in —
jeopardy. The fact that particular grants are enumerate —
in the complaint as instances of unconstitutionality does not _
narrow the claim that the statute in its entirety is invalid,
Certainly it would be a strained misreading of the complaint —
to in any way construe it as limited to a particular grant
to a particular school or class of schools or to anything less j
than an attack on the entire statutory scheme.
The statute itself provides a comprehensive plan for 3
the appropriation of money on an overall, state-wide basis,
to all private educational institutions which may apply.
Provision for the ‘‘purchase”’ of ‘‘secular education”? in
“‘sectarian”’ institutions and how this is to be accomplished
in a ‘‘constitutional’’ manner are the very workings of the
Act. And it is this statutory machinery in its entirety —
which is ciaimed to be unconstitutional in the present com-
plaint. Obviously, we are not concerned here with the
improper exercise of authority in a particular case where |
the action purports to rest on an otherwise constitutional |
foundation. In this case the foundation itself, the under-
lying statute, by which taxpayer funds are sought to be |
given to sectarian institutions is claimed to be invalid and .
the ‘‘doom’’ of that foundation on a state-wide basis is the
obvious objective of the present case.
Judge Hastie has raised a question regarding the ap-
propriateness of a three-judge court assuming it is con-
ceivable that a particular school could constitutionally
receive state aid under the statute. However, the fact that
a particular grant may not be unconstitutional is not deter- |
° ae
AR sla ede NW,
Plaintiffs’ Memorandum A61
minative of the § 2281 issue. That fact bears on the
merits of the entire controversy. It is not a test to be
applied in determining whether for jurisdictional purposes
a three-judge court is required. The ultimate issue on
constitutionality must not be equated with the threshold
question of determining proper jurisdiction to hear that
issue. For that determination, we need not look beyond the
complaint and the statute attacked. If, on this basis it is
clear, as it must perforce be in this case, that a substantial
claim of constitutional deprivation is raised a three-judge
court is required.
The present case is on all fours with Poindexter »v.
Louisiana, 258 F. Supp. 158 (E. D. La. 1966). In that case,
plaintiffs attacked the constitutionality of the Louisiana
Legislature’s attempt to use tuition grants to support so-
called ‘‘private’’ schools for white children fleeing from
desegregated public schools. On motion to dismiss the de-
fendants contended that the case did not require a three-
judge court since the complaint asked the court to enjoin
only the constitutional application of a tuition grant statute
and did not seek to have the statute itself declared uncon-
stitutional. In answer to this contention, Judge Wisdom,
on behalf of the three-judge court, in language which is as
equally applicable here as it was in that case, stated:
‘The convening of a three-judge court is proper in
this case. Section 2281 specifies that this special court
is necessary if the plaintiffs seek to restrain the ‘en-
forcement, execution, or operation’ of a state ‘statute’
or an ‘order’ of a state administrative board or com-
mission. The plaintiffs ask the court to enjoin the
defendants and state officers from ‘enforcing’ the legis-
lative program as administered or as operated under
certain Louisiana statutes. A ‘petition for injunction
on the ground of the unconstitutionality of a statute
Plaintiffs’ Memorandum
as applied * * * requires a three-judge court.’ Here
the complaint does not seek to restrain unlawful ex-
ecutive action; here the legislative policy is under
attack : ‘The crux of the business [use of a three-judge
court] is procedural protection against an improvident
state-wide doom by a federal court of a state’s legis-
lative policy. This was the aim of Congress and is the
reconciling principle of the cases.’ See Hall v. St.
Helena, 197 F. Supp. at 658-659 in which a three-judge
court enjoined the closing of schools under the earlier
statute giving local school boards the authority to sus-
pend or close public schools. See also Herkness v.
Krion, 1928, 278 U. S. 92, 49 S. Ct. 40, 73 L. Ed. 198 in
which the Supreme Court rejected the district court’s
distinction between an allegation of unconstitutional
action on the part of state officers as opposed to allega-
tion of the unconstitutionality of the statute under
which they acted.
The constitutional contention is substantial. The
plaintiffs need not conclusively demonstrate in the com-
plaint the unconstitutionality of the statutes or their
application. ‘For jurisdictional purposes it suffices
that a substantial claim of deprivation has been
made.’ 9?
Id. at 165.
But, it now appears that defendants, in fact, do not
dispute that a three-judge court is required. Indeed, as we
read their brief they agree that such a court is obviously
necessary. What defendants attempt, however, is to trans-
form this jurisdictional requirement into some inexplicable
limitation on the scope of the evidence which the Court,
once properly convened, can consider on the merits and that
a three-judge court is limited to considering facial uncon-
stitutionality. Dozens of cases refute this, the most recent
|?
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9
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Plaintiffs’ Memorandum A63
in this church-state field being Schempp. Thus, by the use
of quotations from cases testing whether a three-judge court
was not proper where the legality of particular activities
unrelated to state-wide legislative action was involved they
improperly conclude that once a three-judge court is con-
vened it cannot hear evidence dealing with specific instances
of claimed illegality, notwithstanding their bearing on the
constitutionality of the entire statutory scheme. This is
a non sequitur.
Accepting defendants contention, a three-judge court
would always be limited in determining constitutionality to
a review of the pleadings. Nothing in § 2281 lends any sup-
port to such a contention. Obviously, three-judge jurisdic-
tion cannot be confined to cases where unconstitutionality
appears on the face of the statute. See Poindexter v. Loui-
siana, supra. What evidence a court may hear in a par-
ticular case is a matter of rules of evidence within the
framework of the issues raised and has nothing whatsoever
to do with § 2281. To impose the inhibition sought by the
defendants in this case would unreasonably restrict the
court without in any way implementing the basic policy of
§ 2281.
Respectfully submitted,
Henry W. Sawyer, III,
Henry W. Sawyer, III,
Drinker Bippte & Reatu,
1100 Philadelphia Nat’l Bank Bldg.
Philadelphia, Pennsylvania 19107.
Of Counsel:
Szymour Kuruanp, Esq.
Twelfth Floor, Packard Building,
Philadelphia, Pa. 19102.
A64 Oral Argument
EXCERPT FROM ORAL ARGUMENT.
(Title omitted in printing.)
[86]
Mr. Sawyer: I have a section dealing with that, and, in
fact, somewhat expanded with a few additional cases than
what I said about it in my brief, and we will be arriving at
almost in a moment, your Honor, in the progression of my
thoughts here today.
I wanted to review the allegations of the complaint in
terms of what are the exact points of unconstitutionality—I
just want to label them at this point—that it challenges.
First it says—and there are five separate grounds of un-
constitutionality, and it is our contention that if we satisfy
the Court on any one of them, that the bill goes down. In
other words, these are separate, and although they have re-
lationship to one another, if we prevail in the sense of con-
vineing the Court that what we say is indeed true legally
and factually, these are all separate grounds.
First, that the bill’s purpose is to aid religion.
Secondly, that the bill’s primary effect is to aid reli-
gion. Not a secular effect, but a religious effect.
Point 3, that the purchase of services is window dress-
_ing, that-itis a device. And that if it is not a device, that
the State is doing something forbidden; i.e.,
[87]
it is attempting to serve a secular end by religious means.
Four, that the Act prefers one religion over another,
which legislation may not do.
And five, that it creates the kind of forbidden inter-
dependence between the State and religious organizations,
that is unconstitutional.
LANE ew tie RE le GR AT
Oral Argument A65
Now, let me say here that there has been this under-
~ current constantly—and it is a perfectly understandable
strategy on the part of defendants, to speak as if only
* facial constitutionality can be considered at this point.
’ There again they misapprehend the motion to dismiss, be-
4 cause I have alleged both facial and applied. And when I
4 say ‘‘applied’’—constitutionality as applied, I mean it in
|
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. the sense in which it is I understand generally used, and
- that is that you look at the general effect of the application
of the statute. Constitutionality as applied in the cases is
not confined to an application which by some maladminis-
tration only affects a particular and specific application.
I am not saying, and I think I have made this clear,
that this Act is only unconstitutional as to these defendant
schools. I am talking about it being unconstitutional in its
entire purpose, thrust and effect in 67 counties of the State
of Pennsylvania. I don’t want to trench on the three-judge
court issue, and that comes close to it. Mr.
_ Pfeffer is going to talk about it. But we are not here just
talking about facial constitutionality. Nor, I will agree,
&
4
- however, are we here talking about a particular individual
quirk which makes it let’s say unconstitutional as to one of
the defendants. But ‘‘applied’’ is broader than that.
Now, everybody agrees as to what the test is. My brief,
and the defendants’ brief, all the defendants’ brief agrees
on what we can label the McGowan-Schempp-Allen test.
When does the Court use this test? This test is used by the
Court whenever the issue is of the kind that we have here,
where the question must be posed: is the primary thrust,
purpose, intent, effect of this Act to aid a religious institu-
tion with only consequential benefits over to an individual,
or is the primary thrust to aid an individual in a legitimate,
A66 Oral Argument
let us say, welfare need, in which the effect in behalf of the
religious institution is consequential? And the test is thy :
—let’s read it, as it is very short. I think it is worth it. 5
‘“‘The test may be stated as follows:—’’ This is the q
latest statement of it in Allen. You find it in Schempp, ani —
it was originated in McGowan, with a slight extra flourish
which I will speak of. It really originated with Justice ‘
Warren in McGowan.
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Motion to Strike Allegations A67
DEFENDANT SCHOOLS’ MOTION TO STRIKE REPRE-
SENTATIVE ALLEGATIONS OF THE COMPLAINT
AND THE AMENDED COMPLAINT OR, IN THE
ALTERNATIVE, FOR A HEARING UNDER
RULE 23(c).
(Title Omitted in Printing.)
Defendant Schools, by their respective attorneys, re-
spectfully move the Court to enter an Order striking from
the Complaint and the Amended Complaint all allegations
of ‘‘representativeness”’’ or ‘‘typicalness’’* and direct that
the actions proceed as against the seven named Defendant
Schools in their individual and not in any other capacities,
or, in the alternative, to order a hearing in accordance with
Rule 23(c). In support thereof, Defendants assign the fol-
lowing reasons:
1. In paragraph 7 of the Complaint, Plaintiffs averred
that the Defendant Schools are representative of all sec-
*The allegations of representativeness to which Defendant
Schools refer are:
(a) Complaint, paragraph 7:
Each of the institutional defendants is a sectarian educa-
tional institution at the elementary or secondary level situated
and operating within the Eastern District of Pennsylvania. They
are sued herein as representative of all sectarian educational in-
stitutions in the Commonwealth of Pennsylvania whose policies
and practices, by purpose or effect, exclude from admission or
otherwise discriminate against persons by reason of race or
religion, the number of such sectarian and other educational
institutions being too numerous to be conveniently joined as
defendants in this suit.
(b) Amended Complaint, wherein the word representative in the
fourth sentence of paragraph 7 is deleted and the word “typical” is
substituted.
(c) Complaint, paragraphs 12, 13, 14 and 15 insofar as they purport
to describe activities of the members of the class of which the Defend-
ant Schools are alleged to be representative. See particularly the
language “most of the other educational institutions” (paragraphs
13, 14 and 15).
A68 Motion to Strike Allegations
tarian institutions in the Commonwealth and are too numer. '
ous to be conveniently joined as Defendants, thereby invok. '
ing the class action machinery provided for under Rule 2 _
a Motion under Rule 23 requesting the Court to hold a hear. +
action may be maintained as a class action. |
3. At the first pre-trial conference on July 31, 1969, |
ing for the purposes of determining whether or not the ;
4
counsel for Plaintiffs stated that the action would not be ,
maintained as a class action. On August 4, 1969, Plaintiffs |
filed an Answer to Defendants’ Rule 23 Motion, stating:
‘‘Plaintiff agrees that the action will not be maintained asa
class action under Rule 23(c) of the Federal Rules of Civil |
Procedure.’’ However, counsel’s letter of enclosure, dated
August 4th, contained the following statement:
2
2. Thereafter, on July 25, 1969, Defendant Schools filed
{
4
q
So that there will be no misunderstanding, the com. _
plainants do allege that the defendant schools are |
representative in certain particulars of all the schools _
who are the beneficiaries of the Act.
In spite of Plaintiffs’ Answer, it was clear that counsel be-
lieved that Defendant Schools were representative of all the
schools who are beneficiaries under the Act.
4. The contrast between Plaintiffs’ Answer to Defend.
ants’ Motion, and counsel’s covering letter is evident. As a
result, Defendant Schools again raised this question at the
second pre-trial conference on August 18, 1969.
5. In the course of the discussion at the second pre-trial |
conference, Defendant Schools understood the Court to say
that the pre-trial Order would remove the last sentence from
Motion to Strike Allegations A69
paragraph 7 of the Complaint. On August 20, 1969, the
Court entered a pre-trial Order directing that the action
‘shall not be maintained as a class action’’ but that the
’ allegations of representativeness ‘‘need not be answered by
4
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‘
a
§
defendants.’’ Thus, the class action features of this suit
remained in the Complaint.
6. Plaintiffs’ Memorandum of October 1, 1969 respect-
ing the necessity of a three-judge court made it plain that
counsel was still treating the action as a class action, but
was trying to avoid the necessity of proving the representa-
tiveness of the named schools as required by Rule 23. Note
the following language from Plaintiffs’ Memorandum :
The defendants’ briefs with respect to both the
three-judge court and the meaning of the phrase ‘as
applied’ in the complaint purport to believe that, by
including seven particular recipient schools as defend-
ants the plaintiffs are suggesting that only in the Act’s
application to these particular schools (by reason of
some peculiar aberration) is the Act unconstitutional
asapplied. On the other hand, the complaint constantly
alleges that these schools are representative (i.e, typt-
cal), of the kinds of schools which are receiving the aid
provided by Act 109, and yet the defendants move to
delete these allegations. (Emphasis supplied. Plain-
tiffs’ Memorandum, page 1.)
7. This memorandum necessitated Defendants again
addressing themselves to this issue at oral argument.
Plaintiffs’ response was to file on October 16, 1969 an
Amended Complaint reading in part:
The word ‘‘representative’’ in the fourth sentence
of paragraph 7 is deleted and the word ‘‘typical’’ is
substituted.
A70 Motion to Strike Allegations
This language in the light of Plaintiffs’ prior acknowledg.’ i
ment that the words “‘typical’’ and ‘‘representative”’ an
identical, clearly signifies their intention to pursue a clay —
action using synonyms.
8. The terms ‘‘typical’’ or “‘representative’’ are ny’ ;
ordinary descriptive adjectives when employed to describ .
parties sued as part of a larger group at whom a complain:
is aimed. The words import the core characteristic ofa
class action, as to which the subjective intent of the pleader
is irrelevant. It is one thing to call a person a *“ typical '
scholar’’, or a piece of music ‘‘representative America
music’’: the employment of these adjectives invokes
legal consequences to anyone or to anything. While deny.
Dia et ot Ay gc intati
Nate Se
ing that this is a class action, Plaintiffs’ statements and
actions demonstrate that they intend the most specific legal |
consequences to 1100 or more schools not on this record, |
that is, to subject these schools to judgment in this cas
without an opportunity to be held under Rule 23.
9. Defendant Schools’ view there can be only two
alternatives: (a) either this action will proceed as a class __
action in which Plaintiffs will have to prove that the seven |
schools are representative of the other beneficiaries under |
the Act, or (b) the application claims shall be heard only |
as to these seven named Defendant Schools in their indi-
vidual capacity and no other capacity. It is obvious that a
Plaintiffs have attempted to mold a middle ground which
will offer the benefits of alleging representativeness with |
none of the burdens of proving this factual allegation.
Wuererore, Defendant Schools respectfully pray the
Court to enter an Order striking from the Complaint and
the Amended Complaint all allegations of representative-
SEIT lh ART Romy =
0%
Motion to Strike Allegations A71
' ~ ness, typicalness and the like, or in the alternative to order
- a hearing in accordance with Rule 23.
Batu & SKELLY,
4
; Wu B. Batt,
- JosePH G. SKELLY,
@ Attorneys for Defendant Archbishop
Wood High School for Girls.
James EK, GALLAGHER, JR., AND
7 C. Cutark Hopeson, Jr.,
James EK. GALLAGHER, JR.,
C. CLtark Hopeson, Jr.,
Attorneys for Defendants St. Anthony’s
School and Holy Ghost School.
F. Raymonp Hevegs,
F. RaymMonp Hevegs,
Attorney for Defendant Germantown
Lutheran Academy.
SAMUEL Rappaport,
SaMvEL Rappaport,
Attorney for Defendants Akiba Hebrew
| . Academy and Beth Jacobs Schools.
Donap Semiscu,
Downatp Semiscu,
Attorney for Defendant Philadelphia
Montgomery Christian Academy.
_ Of Counsel:
_ Srraptey, Ronon, Stevens & Youna,
1300 Girard Trust Building,
Philadelphia, Pennsylvania 19102
wo See * ain “ — ‘
j Wim D. Vatente,
Spring Mill and County Line Roads,
Villanova, Pennsylvania 19085
4
H
A72 Attorney General’s Suppl. Memorandum
ATTORNEY GENERAL'S SUPPLEMENTAL
MEMORANDUM OF LAW.
(Title omitted in printing.)
The Commonwealth of Pennsylvania pursuant to leay
granted by your Honorable Court respectfully submits th
following memorandum with respect to the meaning an
intent of the Governor’s Code of Fair Practices promul.
gated by the Honorable Raymond P. Shafer, Governor ¢
Pennsylvania on April 25, 1967.
Under the Constitution and laws of Pennsylvania, th
supreme executive power of the Commonwealth is vested in,
the Governor whose duty it is to take care that the laws be
faithfully executed. |
“«* * * The Governor is designated as the Officer
having the supreme executive power. He is the highes!
authority i in the executive department, and his power
is supreme in the exercise of his judgment or disere.
tion. He bears the same relation to the state as the
President does to the United States and, in the dis
charge of his political duties, is entitled to the same
immunities, privileges, and exemptions.’ 24 Am. Jur.
at page 824.
Pursuant thereto, the Governor’s Code of Fair Practice
was established which inter alia provides:
‘*Article VII. Public Contracts
Every State contract for public works or for gooi:
or services shall contain a provision baring discrimina
tion on account of race, color, religious creed, ancestry,
age, national origin, or sex and such contractural provi-
sions shall be fully and effectively enforced.”’
1. Pennsylvania Constitution, Article IV, Section 2; The Ad
ministrative Code of April 9, 1929, P. L. 177, Section 701, 71 P.S
241, et seq.
ennai
Attorney General’s Suppl. Memorandum A73
The said provision has force and effect equal to law in
that it is binding upon all departments and agencies of
state government under the Governor’s jurisdiction subject
to the interpretation thereof hereinafter discussed. To
that extent the directives thereof become an integral part
sth 9 of every statute and regulation affecting the executive
an’ + branch of the state government without the necessity for
mu ~ physical incorporation therein.
mr of The statement of executive policy enunciated by Execu-
tive Directive No. 21 is consistent with and in furtherance of
, th’ } Commonwealth policy as legislatively expressed in the Hu-
dit + man Relations Act of October 27, 1955, P. L. 744, 43 P. S.
sh > 951 et seq, and the Fair Educational Opportanities Act of
July 19, 1961, P. L. 776, 24 P. S. 5001 et seq. The Human
fice Relations Act condemns the practice or policy of discrim-
het, ination against individuals or groups im employment or
ywer housing accommodations by reason of their race, color, re-
er. | ligious creed, ancestry, age or national origin. The Fair
{Educational Opportunities Act declares it to be an unfair
dis. educational practice for an educational institution to ex-
am clude or limit or otherwise discriminate because of race, re-
Jur. ligion, color, ancestry or national origin. Significantly, it
specifically excludes from the definition of ‘‘educational in-
_ stitution’’ religious or denominational educational institu-
ices tion. It defines such institution to mean:?
;
«* * * an educational institution which is oper-
. ated, supervised, controlled or sustained primarily by
rods | a religious or denominational organization, or is one
ina. | which is stated by the parent church body to be and is,
try, i in fact, officially related to that church by being repre-
Ovi | sented on the board of the institution, and by providing
} substantial financial assistance and which has certified,
by 2. 24 P. S. 5003(2).
A74 Attorney General’s Suppl. Memorandum
in writing, to the commission that it is a religious or!
denominational educational institution.”
Section 2 of the act which declares the policy of the 7
Commonwealth states that: *
“It is recognized that there is a fundamental |
American right for members of various religious faith:
to establish and maintain educational institutions ex.
clusively or primarily for students of their own reli.
gious faith. In such institutions students, otherwise ‘
qualified, should have equal opportunity to attend '
therein without discrimination because of race, color,
é Sp ;
ancestry or national origin. 3
j
3
The foregoing policy is reemphasized in Section 4 of
the act wherein it is provided: *
i
“Nothing in this section shall be deemed to affect |
in any way the right of religious or denominational edu- 4
cational institutions to select its students exclusively —
or primarily from members of such religion or denom- |
ination, or from giving preference in such selection to
such members, ’’
Thus the Legislature of Pennsylvania has recognized
and emphasized the right of religiously oriented schools to
give preference in selection to persons of a particular faith
so long as they do not discriminate on account of race, color,
ancestry or national origin. This proviso preserves and if
maintains the state’s condemnation of all manner of dis-
crimination while at the same time recognizing that certain
educational institutions may give priority to persons of a
particular faith seeking admission thereto without being |
guilty of invidious discrimination. {
3. 24 P. S. 5002(c).
4. 24 P. S. 5004(5-c).
ro
le
Pa TT ae
+ Male hattibteaicn Bimal
Attorney General’s Suppl. Memorandum AT5
Such invidious discrimination does not result where a
policy of a religiously affiliated agency gives preference in
admission to persons of the same religion.
Furthermore, the enactment of Act No. 109 of 1968, the
statute here under consideration, is obviously designed to
aid all non-public schools including those affiliated with a
particular religion. This is manifest by its strict require-
ments that only secular subjects not including any subject
matter expressing religious teaching or the morals or forms
of worship of any sect shall be purchased under its
authority.
‘¢ ‘Seeular subject’ shall mean any course which is
presented in the curricula of the public schools of the
Commonwealth and shall not include any subject matter
expressing religious teaching, or the morals or forms
or worship of any sect.’’
In proclaiming Executive Directive No. 21, Governor
Shafer stated that:
‘‘TIn the conduct of its affairs, it is incumbent upon
State government to be the leader to honor and fulfill
the principles and provisions of law which the Legisla-
ture has established as the standard policies for the
Commonwealth.”’
The meaning and effect of Article VII of the Governor’s
Code of Fair Practices can best be determined by reference
to the anti-discrimination legislation above discussed. This
is a typical case requiring the application of the Rule of
Statutory Construction applying to laws in pari materia.
That rule which has been incorporated into Pennsylvania’s
Law of Statutory Construction® defines laws as being in
5. Act 109 of 1968, Section 3.
6. Act of May 28, 1937, P. L. 1019, Section 62, 46 P. S. 562.
A76 Attorney General’s Suppl. Memorandum
pari materia when they relate to the same class of persons _
or things and directs that such laws shall be construed to —
gether as one law if possible. It requires that statutes ar
to be construed in harmony with the existing law and asa ~
part of a general and uniform system of jurisprudence. |
such laws can be made to stand together, effect should bh 4
given to all their related provisions as far as possible. [In |
re Peplinski’s Estate, 155 Pa. Super. 564 (1941) and Kelly —
v. City of Philadelphia, 382 Pa. 459 (1955).] The resolution
and statutes under consideration all treat the subject of in.
vidious discrimination. The relationship between them is |
patently obvious. We must presume that in promulgating
the Code of Fair Practices, the Governor intended, as he F
stated therein, to ‘‘honor and fulfill the principles and pro —
visions of law which the Legislature has established.’’
It is respectfully submitted that the position of the
Commonwealth is consistent with the principles established |
by the Supreme Court of the United States in Board of
Education v. Allen,’ Everson v. Board of Education;
Rhoades v. Abington Township School District ® and Pierce |
v. Society of Sisters.”
CONCLUSION.
It is the position of the Commonwealth that the mean-
ing and effect of the Governor’s Code of Fair Practices as
expressed in Executive Directive No. 21 must be interpreted
in the light of existing statutory law and that the directive —
of Article VII thereof relating to public contracts where
educational services are concerned permits the purchase of |
secular educational services from a religious or denomina- |
tional educational institution which gives preference in ad-
7. 392 U. S. 236 (1968).
8. 330 U. S. 1 (1947).
9. 424 Pa. 202 (1967), appeal dismissed 389 U. S. 11 (1967).
10. 268 U. S. 510 (1925).
ee
“ a Sie oil
pat a ae
Attorney General’s Suppl. Memorandum A77
q mission policies to persons of the same religion as that to
aA ANAK SG Bich fess nicely SEL ie Ral thin ate i ag
which the institution is affiliated so long as it does not dis-
criminate on account of race, color, age, national origin or
ancestry.
Respectfully submitted,
Epwarp FRIEDMAN,
Counsel General.
Wii C. Sennett,
Attorney General.
A copy of this memorandum is being addressed to the
Secretary of Education with the directive that he comply
with the conclusions expressed therein. Under the laws of
the Commonwealth of Pennsylvania, that opinion is binding
upon and must be followed by the Secretary of Education.
Administrative Code of 1929, supra, 71 P. S. 192; Common-
wealth ex rel. Shockley v. Ross, 53 Dauph. 329 (1943) ; Com-
monwealth ex rel. Sennett v. Minehart, 88 Dauph. 279 at 288
(1967).
A78 District Court Opinion and Order
IN THE
UNITED STATES DISTRICT COURT
For THe Eastern District or PENNSYLVANIA
Crviz Action No. 69-1206.
——
ALTON J. LEMON, PRISCILLA REARDON ,BETTYJ. @
WORRELL, axp PENNSYLVANIA STATE EDU. ‘ at
CATION ASSOCIATION, PENNSYLVANIA CON. Ve
FERENCE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, PENN. | ; Al
SYLVANIA COUNCIL OF CHURCHES, PENN. | : Ri
SYLVANIA JEWISH COMMUNITY RELATIONS — ®
CONFERENCE, AMERICANS UNITED FOR SEP. ; fo
ARATION OF CHURCH AND STATE, AMERICAN |
CIVIL LIBERTIES UNION OF PENNSYLVANIA, |- th
INC. fb
v, fg be
; at
DAVID H. KURTZMAN, as SuperinTenvENT or Pusuc _—iopid
InsTRucTION oF THE COMMONWEALTH OF PENNSYLVANIA, | : m
GRACE SLOAN, as Srare Treasurer or THE ComMoy- ig je
WEALTH OF Pennsytvania, ST. ANTHONY’S ROMAN ti
CATHOLIC CHURCH SCHOOL, ARCHBISHOP ; in
WOODS GIRLS HIGH SCHOOL, UKRAINIAN I; pe
CATHOLIC SCHOOL, GERMANTOWN LU. aw
THERAN ACADEMY, AKIBA HEBREW ACAD. | re
EMY, PHILADELPHIA MONTGOMERY CHRIS. of
TIAN ACADEMY, anv BETH JACOBS SCHOOLS _ 8)
OF PHILADELPHIA
pice i P
Before Witu1am H. Hastie, Chief Judge, Circuit Court, , %
Aurrep L. Luonco and E. Mac TROUTMAN,
Judges, District Court
8 Seine
ae Ee, b pce re wee Tee eae Lec ew
District Court Opinion and Order A79
OPINION AND ORDER.
TRouTMAN, J.
The present suit seeks to enjoin the alleged unconsti-
tutional approval and expenditure of State funds under the
Pennsylvania Nonpublic Elementary and Secondary Edu-
cation Act! (hereinafter the Education Act). Since the
complaint alleges the unconstitutionality of a statute of
state-wide application, this three-judge panel has been con-
vened. 28 U.S. C. §§ 2281-84?
Jurisdiction is based on the First and Fourteenth
Amendments to the United States Constitution and the Civil
Rights Act, 28 U. S. C. § 1343. Presently before the Court
are defendants’ motions to dismiss for lack of standing and
for failure to state a claim upon which relief can be granted.
The individual plaintiffs are citizens and taxpayers of
the Commonwealth of Pennsylvania and their claims are
brought in that capacity. Plaintiff Lemon, in addition to
being a citizen and taxpayer, is a Negro parent of a child
attending public school in Pennsylvania. The organizational
plaintiffs are associations of persons resident in the Com-
monwealth of Pennsylvania which ‘‘share as a common ob-
jective the separation of Church and State and the opposi-
tion to the use of public funds for the support in whole or
in part of sectarian schools, or other private schools whose
policies and practices, by purpose or effect, exclude or other-
wise discriminate against persons by reason of race or
religion.’’? The National Association for the Advancement
of Colored People, (NAACP) with which the plaintiff, Penn-
sylvania State Conference of the NAACP, is affiliated, ‘‘is
1. Nonpublic Elementary and Secondary Education Act, 24
P. S. § 5601 et seq. (Supp. 1969). The complete text of the statute
appears in Appendix A, infra.
2. See Ex parte Bransford, 310 U. S. 354 (1940).
3. Complaint at p. 2.
A80 District Court Opinion and Order
an organization whose purpose is to seek the elimination of —
racial discrimination through resort to judicial proceeding: —
and otherwise’’.* Each of the organizational plaintiffs as —
serts its standing to sue as a party-plaintiff in the instant —
suit.
The defendant Kurtzman is the Pennsylvania Superin. —
tendent of Public Instruction who is responsible for ap —
proving the allocation of funds under the Pennsylvania —
Education Act. Defendant Sloan is the State Treasurer —
of the Commonwealth of Pennsylvania who will allocate
the approved funds. The seven defendant schools are
sectarian elementary and secondary educational institu
tions situated within the Eastern District of Pennsylvania,
who have contracted with the Commonwealth for the pur-
chase of secular educational services under the Education
Act.®
I.
The Nonpublic Elementary and Secondary Education Act.
The Education Act was signed into law by the Gov-
ernor of Pennsylvania on June 19, 1968. The Act em-
powers the State Superintendent of Public Instruction to
contract for the purchase of ‘‘secular educational services”
from nonpublic schools located in the Commonwealth of —
Pennsylvania which fulfill the compulsory school attend-
ance requirements under Pennsylvania law.
In its legislative findings and declaration of policy*
the Pennsylvania Legislature has determined that a crisis
exists in elementary and secondary education in Pennsyl-
vania due to rapid increases in costs and school population
4. Complaint at p. 2.
5. The Pennsylvania Association of Independent Schools
(PAIS) has been permitted to intervene as a party-defendant for
the limited purpose of arguing the defendants’ motion to dismiss.
6. 24 P. S. § 5602, Appendix A, infra.
eae ETE Bee TT
ares Peart
ee eae
= lS eS = cl lUltCSN)
District Court Opinion and Order A81
' and consequent demands for more teachers and facilities.
It was also found that twenty per cent of all elementary
and secondary school children in Pennsylvania fulfill the
requirements of the Commonwealth’s compulsory school
attendance laws in nonpublic schools. It has been further
recognized that elementary and secondary education consti-
tutes a public welfare purpose and that nonpublic edu-
cation, by providing instruction in secular subjects,
contributes significantly to the achievement of this public
purpose. The Legislature, therefore, conclude that it is a
governmental duty to support the achievement of this
public welfare purpose by supporting the purely secular
objectives of nonpublic education.
Briefly, the operational scheme of the statute permits
the Superintendent of Public Instruction to enter into con-
tracts? with nonpublic schools, whether sectarian or non-
sectarian, for the purchase of ‘‘secular educational serv-
ices’. These ‘‘secular educational services’’ are defined *
to mean ‘‘providing of instruction in a secular subject’’,
while secular subject is defined as ‘‘any course which is
presented by the public schools of the Commonwealth and
shall not include any subject-matter expressing religious
teaching, or the morals or forms of worship of any sect’’.
7. The Pennsylvania Supreme Court has recognized that the
State may contract with sectarian institutions for the purchase of
needed public services. Schade v. Allegheny County Inst. Dist., 386
Pa. 507 (1956). Furthermore, Pennsylvania has also recognized
that such contracts are not “appropriations” to aid such organiza-
tions under the Pennsylvania Constitution, Art. III, §29. Schade,
supra; see also Commonwealth v. Perkins, 342 Pa. 529 (1941).
Apparently, the reason for adopting a contractual method for car-
tying forth the aims of the Education Act was to avoid possible
conflicts with the strictures of the Pennsylvania Constitution. Re-
gardless of the method employed to distribute funds under the Edu-
cation Act, the constitutional result we reach today would not be
changed. As long as the purpose and primary effect of the statute
neither — nor inhibits religion, the constitutional standard
1s sati .
8. All definitions appear in 24 P. S. § 5603, Appendix A, infra.
A82 District Court Opinion and Order
All purchases of secular educational services under the|
Education Act are to be at the “actual cost’? of thre
items of such service: teacher salaries, textbooks and i,
structional materials. The Education Act further limit
all purchases of secular educational services to cours
in mathematics, modern foreign languages, physical scien,
and physical education.’ As a condition for payment under :
the Act, the Superintendent of Public Instruction my _
approve all textbooks and instructional materials eupled!
in the instruction rendered. In addition, a satisfactory
level of student performance in standardized tests mus
have been attained and within five years of the date of
the Act all secular educational services for which rein.
bursement is sought must be rendered by teachers holding
State certification equal to the standard for teachers in
public schools.”
Payment under the Act in discharge of the contractul
obligation may be made only after service has been rep-
dered. Section 5607(a) provides in relevant part that:
Any nonpublic school seeking such reimbursement shall
maintain such accounting procedures, including main.
tenance of separate funds and accounts pertaining to
the cost of secular educational service, as to establish
that it actually expended in support of such service
an amount of money equal to the amount of money
sought in reimbursement. Such account shall be sub-
ject to audit by the Auditor General.
9. The definitions in the “Rules and Regulations for Implement-
ing the Pennsylvania Nonpublic Elementary and Secondary Educ
tion Act” provide that “Secular educational service purchased under
this Act shall consist solely of courses in the subjects of mathematics,
modern foreign languages, physical science, and physical education”.
Definition 8 at p. 3.
10. See 24 P. S. § 5604, Appendix A, infra.
al °
Se en eee eae
District Court Opinion and Order A83
Funds for the operation and administration of the
Education Act are to be drawn only from the nonpublic
elementary and secondary education fund. The monies
comprising this fund are to be taken exclusively from the
proceeds of State horse racing and harness racing."
Defendants, in their brief, have informed the Court
that 1181 nonpublic elementary and secondary schools in
Pennsylvania, having a total pupil population of 535,215
children, and located in 55 of Pennsylvania’s 67 counties,
are now under contract with the Commonwealth pursuant
to the Education Act. One year’s performance under
contract has now been rendered and, on September 2, 1969,
the Commonwealth paid its first quarterly installment
obligation.
Il.
Standing of the Individual and Organizational Plaintiffs.
The defendants have moved pursuant to Rule 12(b) to
dismiss plaintiffs’ complaint on the grounds that both the
organizational and individual plaintiffs lack standing to
maintain the instant suit under the religious clauses of the
First Amendment and the equal protection clause of the
Fourteenth Amendment.”
11. Section 5606 of the Act prohibits the use of any monies
raised by the Commonwealth for the support of the public schools
to pay for services or administrative costs under the Education Act.
In December, 1968, extensive regulations were promulgated
by the Superintendent of Public Instruction which further delineate
the details and operating procedures of the Act and further elaborate
its secular, fiscal, and quality controls.
12. For the purposes of standing, we consider plaintiffs allega-
tions under the Civil Rights Act, 42 U. S. C. § 1343, to be sub-
stantial—equivalents to the equal protection claims raised. We have
made, therefore, no separate analysis of standing under the Civil
Rights Act, but rather treat these contentions in our analysis of
standing under the equal protection clause.
A84 District Court Opinion and Order
A, Organizational Plaintiffs.
The organizational plaintiffs assert their standing
solely on the ground that they are organizations established
for the purposes of either maintaining the separation of
Church and State or preventing racial discrimination.
Nothing further is alleged with respect to the issues of the
instant case than the fact that these organizations share a
common interest in the outcome of this suit as it may or may
not comport with their particular organizational goals. The
fundamental aspect of standing, as recently articulated by
the Supreme Court, is that ‘‘it focuses on the party seeking
to get his complaint before a federal court . . .’’ Flast v.
Cohen, 382 U.S. 83, 99 (1967). The Flast decision further
noted that ‘‘the emphasis in standing problems is on
whether the party invoking federal court jurisdiction has
‘a personal stake in the outcome of the controversy’. . .
and whether the dispute touches upon ‘the legal relations of
parties having adverse legal interests. . . .’”’ Flast v.
Cohen, supra, at 101 (Emphasis added).
On the basis of the allegations set forth in the com-
plaint as they pertain to the organizational plaintiffs, we
can perceive of no personal stake or adverse legal interests
of these plaintiffs which demonstrate their standing as
parties to the instant suit. Regardless of the good motives
of these organizations, the mere fact that the instant case
may result in a decision which may be in accord with or ad-
verse to the respective general purposes of these organiza-
tions we believe is insufficient to establish standing to sue as
an affected party in interest.’ Consequently, the organiza-
13. The organizational plaintiffs have argued that they should
be permitted to sue here as private attorneys general. The Court,
however, perceives no precedent or persuasive reason to adopt this
theory in the instant case. Indeed, to do so may result in the render-
ing of an advisory opinion on a constitutional matter in contravention
of Article III of the Constitution. See Muskrat v. United States,
219 U. S. 346 (1911).
District Court Opinion and Order A85
~ tional plaintiffs have failed to establish standing as to both
the religious and equal protection issues involved in the
~ instant case.
B. Individual Plaintiffs.
The individual plaintiffs, Alton Lemon, Priscilla Rear-
don and Betty J. Worrell, assert standing under the reli-
nay | gious clauses of the First Amendment and the equal protec-
[The tion clause based upon varied allegations of status as to
by | each issue.
ing bs Initially, it is alleged that all individual plaintiffs are
tv. | taxpayers of the Commonwealth of Pennsylvania. Plaintiff
her | Lemon alleges he has paid an admission fee to a Pennsyl-
on | vania race track. Such fees provide the sole financing of
' the Education Act. The other individual plaintiffs have
~ not alleged payment of such admission fees.
i As to plaintiff Lemon’s standing as a taxpayer under
v. f the establishment and free exercise clauses of the First
;
_ Amendment, again we note that the focus is on the party
_ asserting his claim. In this respect, however, ‘‘[i]t is both
4 ; sae’
_ appropriate and necessary to look to the substantive issues
sts | .. . to determine whether there is a logical nexus between
_ the status asserted and the claim sought to be adjudicated.”’
_ Flast v. Cohen, supra, at 103. Although the Flast decision
se |) concerned itself with the status of a fede» taxpayer to
d- | challenge a federal spending program under the estab-
a- |. lishment and free exercise clauses of the First Amendment,
as we consider that its requirements as to standing apply as
a- {| well to state taxpayers. Flast dictates two requirements
ue for taxpayers standing, namely that: ‘‘First the taxpayer
rt, | must establish a logical nexus between that status and the
is | type of legislative enactment attacked’’ 392 U. S. at 102,
and ‘‘Secondly, the taxpayer must establish a nexus be-
PS, tween that status and the precise nature of the constitu-
tional infringement alleged’’. 392 U.S. at 102. In Flast,
A86 District Court Opinion and Order
both elements were satisfied since it was alleged that the
taxing and spending powers of the federal government wer
being used in excess of the specific constitutional limitation
imposed upon their exercise by the First Amendment. S«
392 U. S. at 103. Since the First Amendment applies
State governmental powers, Cantwell v. Connecticut, 31)
U.S. 296 (1940), the exercise of State taxing and spending
is equally limited. These are precisely the allegations mad
by plaintiff Lemon in the instant case. We, therefore, hol
that he has by these allegations demonstrated standing to
challenge the Education Act under the establishment and
free exercise clauses of the First Amendment.
The other individual plaintiffs assert generally that
they are taxpayers in Pennsylvania. However, they have
not alleged the payment of any tax which would bring them
within the class of affected taxpayers. Doremus v. Board
of Education, 342 U.S. 429 (1952) ; Murdock v. Pennsylvania,
319 U. S. 108 (1943). Rather, these plaintiffs allege that
they have not paid an admission fee to a Pennsylvania race
track because to do so would require them to pay tax for the
support of religion in violation of their rights of conscience.
The personal right to freedom of conscience is protected by
the free exercise clause of the First Amendment and the
State may not condition other rights or privileges upon the
sacrifice of this freedom. See Sherbert v. Verner, 374 U.S.
398 (1963) ; Torcaso v. Watkins, 367 U. S. 398 (1961). Al-
though the privilege to attend a race track here asserted
and its connection to free exercise is less apparent than in
either of the above cited cases, we will recognize it for the
purpose of establishing the standing of these plaintiffs.
The remaining question is whether any of the individual
plaintiffs have standing to challenge the Education Act on
equal protection grounds, It is alleged generally in the con-
plaint that the private schools which have contracted or will
contract with the Commonwealth under the Education Act
Ree el,
District Court Opinion and Order A87
intentionally discriminate in the selection of students and/or
’ teachers or are de facto segregated by race or religion. It
is further alleged that the funds allocated by the Common-
wealth to these schools under the Act will be used to perpet-
uate and support these practices and as such there is State
action involved. We will assume for the purpose of decid-
ing this aspect of the standing issue that these alleged facts
could be proved at a hearing on the merits. Nevertheless,
these plaintiffs lack standing to challenge the Education Act
under the equal protection clause of the Fourteenth Amend-
ment.
The Education Act on its face does not use religion or
race as a standard or guideline to determine who may enter
into a contract with the Commonwealth. As such the Act
itself does not purport to make any classifications to deny
' equal treatment to members of any particular race or re-
ligion. As we previously noted, the requirement of standing
focuses on the party affected and his personal stake in the
outcome of the litigation at issue. Plaintiff Lemon asserts
his status as a Negro and parent of a child in a public school
in Pennsylvania. However, there is no allegation in the
complaint which asserts that Lemon or his child is person-
ally affected by any alleged intentional discrimination or de
facto segregation in these schools. There is no allegation
that Lemon’s child attempted to enroll at any of these
schools and was denied admission because of race or religion.
None of the other plaintiffs’ allegations point to any interest,
parental or otherwise, which has been or may be affected by
the alleged discriminatory practices. The absence of an
allegation that the personal rights of these parties are af-
fected has the net effect of seeking to raise hypothetical
grievances of others who may be personally injured by such
discrimination, Standing requires at least that the plaintiff
himself be personally affected. Flast, supra, at 110. See
also United Public Workers v. Mitchell, 330 U. S. 75 (1947).
|
A88 District Court Opinion and Order
Race is indeed a relevant consideration to equal protectic,
issues. However, our research does not disclose any case jy
which a person was permitted to challenge discriminatory
practices, policies or laws where he himself was not the ob.
ject of such practice."* Consequently, as none of the in.
dividual plaintiffs have alleged a personal stake in thy
instant case, they have failed to establish standing under
the equal protection clause.
ITI.
Establishment and Free Exercise.
We consider now the defendants’ motions to dismix
the plaintiffs’ complaint for failure to state a claim upo
which relief can be granted. In this posture of the case we
accept as true all well-pleaded allegations of fact in the
plaintiffs’ complaint. The plaintiffs allege as a fact that
the purpose and primary effect uf ihe Education Act is
aid religion. For the purpose of considering the motion to
dismiss it is argued that the allegation of the purpose ani
primary effect of the Education Act in the complaint mus
be deemed admitted. While it is true that well-pleaded facets
in the complaint are deemed admitted for the purpose of
testing its sufficiency, such an admission does not includ
legal conclusions drawn from these facts. Newport New:
Co. v. Schauffler, 303 U. 8. 54, 57 (1937); Pauling v. Me
Elroy, 278 F.. 2d 252, 253-254 (D. C. Cir. 1960). We believ:
that the allegation asserts not a fact but a conclusion of lav
and as such is not admitted for purposes of testing the sufi.
ciency of the complaint. The question of law then presente
is whether the purpose or primary effect of the Pennsylvaniz
14. See e.g. Burton v. Wilmington Parking Authority, 365 U.S
716 (1961) ; Simkins v. Moses H. Cone Memorial Hosp., 323 F. 2
959 (4th Cir. 1963) cert. denied 376 U. S. 938 (1964) ; Deal v. Cin
cinnati Board of Ed., 369 F. 2d 55 (6th Cir.) cert. denied 389 U.S
847 (1966).
District Court Opinion and Order A89
Education Act on its face or in the necessary effect of its
administration is to advance or inhibit religion.”
The First Amendment to the United States Constitution
provides that ‘‘Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof... .’’ This limitation originally placing a restric-
tion only on federal governmental involvement in religion
has since been judicially incorporated into the Fourteenth
Amendment and now represents a bar on State as well as
Federal action. Cantwell v. Connecticut, 310 U.S. 296 (1940).
The meaning and scope of the First Amendment have been
elaborated several times by the decisions of the United States
Supreme Court in areas involving education. Most appo-
site to the instant case are the Supreme Court’s decisions in
Everson v. Board of Education, 330 U. 8. 1 (1947) and
Board of Education v. Allen, 392 U. 8. 336 (1968). In
Everson, the Supreme Court held that a New Jersey statute
which authorized State reimbursement to parents for bus
fares of children attending both public and parochial schools
did not violate the establishment clause of the First Amend-
ment. The Court noted that the establishment clause pro-
hibits the states from setting up a church or supporting the
religious activities of sectarian institutions. 330 U.S. at 16.
However, the Court further observed that a State may not
hamper citizens from receiving the benefits of public welfare
legislation by excluding religions from its benefits. Id. The
First Amendment ‘‘requires the State to be neutral in its
relations with groups of religious believers and non-
believers... .’’ 330 U.S. at 18. As bussing was generally
in the same category as other government services provided
15. More specifically, with respect to the establishment clause,
in paragraph 18 of the complaint it is alleged that the Act (1) “has
as its purpose the advancement of religion”, and (2) “finances and
participates in the blending of sectarian and secular education”, (3)
“provides for direct financial aid out of State funds to sectarian
schools”, and (4) “has as its primary effect the advancement of
religion”.
A90 District Court Opinion and Order
to parochial schools such as ordinary police and fire pro. |
tection, sewage disposal, public highways and sidewalks, |
this measure of aid, as it benefited school children, could be a
constitutionally extended without breaching the standard of
government neutrality toward religion embodied in the —
First Amendment.
Most recently, in Board of Education v. Allen, 3% t:
U. S. 236 (1968) the Court sustained, over First Amend
ment objections, legislation in New York which required |
the State to lend textbooks free of charge to all children
in private sectarian and nonsectarian school. The Court .
recognized that ‘‘Everson and later cases have shown that _
the line between State neutrality to religion and State sup _
port of religion is not easy to locate. ‘The constitutional
standard is the separation of Church and State. The prob-
lem, like many problems in constitutional law, is one of de-
gree’, Zorach v. Clauson, 343 U. S. 306, 314 (1952). See |
McGowan v. Maryland, 366 U. S. 420 (1961)’”. Id. The
Court re-examined its prior decisions and articulated a _
pragmatic standard, first espoused in Abington School Dis. —
trict v. Schempp, 374 U. S. 203 (1963), by which to test
legislation designed to achieve a public objective through
religiously affiliated educational institutions. To distin-
guish between ‘‘forbidden involvement of the State with
religion and those contacts which the Establishment Clause
permits’’ the Supreme Court stated:
EP ROR ge ee ae ee ee Ne MTN Re ET Oe Pee Ce) Lee ean KE aM es Mare
Be a ARR AIEEE NCE ; x
ee at
The test may be stated as follows: what are the pur- |
pose and primary effect of the enactment? If either
is the advancement or inhibition of religion then the
enactment exceeds the scope of legislative power as cir-
cumscribed by the Constitution. That is to say that
to withstand the strictures of the Establishment Clause
there must be a secular legislative purpose and a pri-
mary effect that neither advances nor inhibits reli-
gion. 374 U.S. at 222.
Le
a MAMI ahs Oe RW RRA EO nS GT
= °° °°
District Court Opinion and Order A91
Although the results of the Everson and Allen decisions
were to provide some measure of indirect aid to parochial
schools in that transportation to receive religious instruc-
tion was facilitated and that the parochial schools’ funds
were no longer required to purchase certain books, such
results did not constitute a breach of State neutrality
towards religion. In applying the purpose and primary
effect test to the New York statute in Allen, the Supreme
Court reasoned that ‘‘[t]he express purpose of section 701
was stated by the New York legislature to be furtherance
of the educational opportunities avaliable to the young.
.. . The law merely makes avaliable to all children the
benefits of a general program to lend school books free of
charge.’’? 392 U.S. at 243. Although a distinction between
bussing and books was recognized, since the latter may
be used as a vehicle of religious teaching, the Court noted
that the language of the New York statute neither author-
ized nor permitted loans or distributions of religious litera-
ture. Properly, the Court was not willing to assume that
New York’s administrators would violate the terms of the
statute; accordingly, it was held that the principal of
neutrality was satisfied and the primary effect of the
statute was not to advance religion. See 392 U.S. at 244,
245.
It is here argued that Pennsylvania’s Education Act
has as its purpose and primary effect the advancement of
religion. We believe that the purpose of the Education
Act can be found clearly on its face. The Legislature has
declared that the purpose of the Education Act is ‘‘to pro-
mote the welfare of the people of the Commonwealth of
Pennsylvania’’ and to ‘‘promote the secular education
of children attending nonpublic schools’’. Support for
this declaration of purpose is found in specific legislative
findings which point to the percentage of school-age chil-
dren educated in Pennsylvania’s private institutions, the
A92 District Court Opinion and Order
rising cost of education, increased school population and |
demands for more qualified teachers and adequate facili. |
ties. Furthermore, the Legislature also recognized the 5
potential financial burden on the public treasury and long.
range impairment of education which may result if private
institutions no longer bear their present educational bur.
dens, The plaintiffs argue that because the vast majority
of schools which will contract for the purchase of secular
educational services under the Education Act are sectarian
schools, the purpose or operative effect of the instant
statute must be to support religion. We cannot accept
the plaintiffs’ argument. ‘‘The fact that a State law, —
passed to satisfy a public need, coincides with the personal
desires of the individuals most directly affected is certainly
an inadequate reason . . . to say that a Legislature has
erroneously appraised the public need.’’? Everson v. Board
of Education, 330 U.S. at 6. The purpose of the statute on _
its face indicates that ‘‘[the State’s] interest is education,
broadly; its method, comprehensive. Individual interests
are aided only as the common interest is safeguarded”.
392 U. S. 247. The plaintiffs urge that we re-examine the |
legislative history of the statute and contend that such an
examination will disclose that the true intent of the Penp-
sylvania legislators was to aid religion. We do not, hovw-
ever, feel that it is necessary or appropriate in the instant
case to re-examine the legislative history of the Education
Act in search of the ‘‘true intent’? of Pennsylvania’s legis-
lators. The legislative findings of the State are not to
be lightly set aside. In this connection, Mr. Justice Frank.
furter has observed that:
(T]he private and unformulated influences which may
work upon legislation are not open to judicial probing.
‘‘The decisions of this Court from the beginning lend
no support whatever to the assumption that the judi-
_
District Court Opinion and Order A93
ciary may restrain the exercise of lawful power on the
assumption that a wrongful purpose or motive has
caused the power to be exerted.’’ McCray v. United
States, 195 U. S. 27, 56. ‘‘Inquiry into the hidden
motives which may move [a legislature] to exercise a
power constitutionally conferred upon it is beyond the
competency of courts.’’ (Citations omitted) McGowan
v. Maryland, 366 U.S. at 496.
The education of our nation’s children quite properly
has been recognized by the Supreme Court as a proper
subject of legislation enacted in furtherance of a public
interest. Cochran v. Board of Education, 281 U. S. 370
(1930). It is neither necessary nor constitutionally permis-
sible to require that educational pursuits be followed only
in public institutions of learning; rather, educational goals
may effectively be satisfied through private education.
Pierce v. Society of Sisters, 268 U. S. 510 (1925). Asa
sensible corollary to the Pierce decision and considering
the State’s interest in satisfying its compusory education
laws through private educational institutions, the Allen
Court observed:
[I]f the State must satisfy its interest in secular edu-
cation through the instrument of private schools it
has a proper interest in the manner in which those
schools perform their secular educational function.
392 U.S. at 236.
We recognize that ‘‘private education . . . is playing a
significant and valuable role in raising national levels of
knowledge, competence, and experience,’’ 392 U. 8S. at 247,
and that the public’s reliance on private education sug-
gests that adequate secular education is being provided in
these schools. We further recognize, as did the Supreme
Court in Allen, that the ‘‘State’s interest in education may
— “LPNS IS to eat eR Rel Ig A ROR Te ARN i RTE ae Tt
~
wm peated
A94 District Court Opinion and Order
be sufficiently served by reliance on the secular teachings
which accompany religious training’’ in nonpublic schools, |
392 U.S. at 245. Furthermore, we consider that ‘‘religious +
schools pursue two goals, religious instruction and secular
education’’, 392 U. S. at 245, and we believe that the State
may aid the secular function rather than the sectarian
function of private educational institutions in the public in-
terest of education within proper confines and without par. »
ticipating in a forbidden involvement in religion proscribed
by the First Amendment. The Education Act on its face
authorizes the Commonwealth to contract only for services
connected with the strictly secular function of educating
Pennsylvania’s school children in the secular subjects of
mathematics,"® physical sciences,’ modern foreign lan-
guage,’* and physical education.'® That the Commonwealth
16. In the Regulation to the Education Act mathematics is de-
fined as follows:
12. “Mathematics” shall mean the science of numbers and
their operations, interrelations, combinations, generaliza-
tions, and abstractions, and of space configurations and their
structure, measurement, transformations, and generaliza-
tions. It includes the study of number, space, and struc-
tural patterns. Branches of mathematics include arithmetic,
algebra, geometry, trigonometry, calculus, analysis, prob-
ability, statistics, logic, and number theory.
17. Physical Science is defined as
15. “Physical science” is organized knowledge about the
physical composition and structure of phenomena and the
process of relating quantitative or qualitative description of
physical phenomena related to time, space, mass, or derived
concepts in a manner that is in agreement with all observed
properties of these phenomena. “Physical science” includes
the basic sciences of chemistry, physics, astronomy, geology, }
physical oceanography, and meteorology as well as the areas
of specialization derived from these.
18. Modern foreign language does not include the teaching of
traditional church related classic languages such as Latin or Greek.
13. “Modern Foreign languages” is a term collectively ap-
plied to the study of pronunciation, grammar, composition
dai cs WAR px:
—
District Court Opinion and Order A95
must not be involved in the religious functions of sectarian
educational institutions is clearly established by the nature
and kind of strictly secular subjects selected in the statute
itself and the controls and restrictions placed upon the
statute’s operation by the regulations promulgated there-
under. Thus limited and restricted we cannot hold that
the statute advances religion either in purpose or primary
effect. Moreover, the statute applies to all nonpublic
schools both sectarian and non-sectarian. As it may apply
to sectarian institutions, we concur with the Supreme
Court’s statement in Allen, supra, that ‘‘we cannot agree
. either that all teaching in a sectarian school is reli-
gious or that the processes of secular and religious train-
ing are so intertwined that secular textbooks furnished to
students by the public are in fact instrumental in the teach-
ing of religion.’’ (Emphasis added) 392 U. S. at 248.
Administered within its narrow confines neither the
primary nor the necessary operative effect of the statute
advances religion. It is quite unlike the situation where
State tax-supported public school buildings, facilities and
teachers are used as a forum and means for the dissemina-
and reading of foreign languages in contemporary use, as
contrasted with that of the ancient, or “dead”, languages
commonly called the classics.
19.
14. “Physical education” refers to that part of the school
programs which provides guidance and instruction through
physical activities designed to meet the needs of pupils in
developing their physical efficiency and recreational skills,
and, along with other phases of the curriculum, provides
maximum opportunity for growth physically, mentally, emo-
tionally, and socially. It includes adaptive physical educa-
tion for those pupils who, because of health reasons, are un-
able to participate in regular classes. “Physical education”
does not consist of instruction in music, driver education,
military training, or extramural or interscholastic athletic
and/or sports. Health instruction is not considered physical
education.
Physical education does not include sex education or other areas
which may be deemed religiously oriented.
+s LET LE PRINT ISRAELS I ALOT LIES ERE:
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A96 District Court Opinion and Order
tion of religious doctrines at times and on occasions when
pupils are subject to the State’s compulsory attendance
laws. McCollum v. Board of Education, 333 U. S. 203
(1948) ; Abington School District v. Schempp, 374 U.S. 203
(1963) ; Engel v. Vitale, 370 U. S. 421 (1962). On the con-
trary, the statute is limited not only ts seeular subjects but
to a limited number of specific seeular subjects peculiarly
unconnected with and unrelated to the teaching of religious
doctrines. The statute is further limited and confined to
the purchase of services at cost. Unlike Schempp and
Engel the statute here maintains a position of complete
religious neutrality. In Zorach v. Clauson, 343 U.S. 306,
the Court approved the State’s encouragement of ‘‘ religious
instruction’’ and its cooperation ‘‘with religious authori-
ties.’’** Here the Education Act does not go so far as to
encourage the teaching of religious matter. We recognize
that the separation of Church and State embodied in the
non-establishment principle is not a self-defining concept.
The increasing national concern for education in our s0-
ciety, coupled with the public awareness that private schools
are performing a significant public service in educating
great numbers of school-age children, necessarily makes
the State interested in private education. Of necessity
therefore:
As the State’s interest in the individual becomes more
comprehensive, it’s concerns and the concerns of reli-
gion perforce overlap. State codes and the dictates of
faith touch the same activities. Most aim at human
good, and in their respective views of what is good for
20. The Court in Zorach stated:
When the State encourages religious instruction or cooper-
ates with religious authorities by adjusting the schedule of
public events to sectarian needs, it follows the best of our
traditions. For it then respects the religious nature of our
people and accommodates the public service to their spiritual
needs. . . . 343 U. S. at 313.
—
Ss fF fb Fo ee CC — et &* «6©«&4, MH 85 3
— ~~ Fr 4 FDO lUCUCOUCUMG lO UU
;
District Court Opinion and Order A97
many they may concur or they may conflict. No con-
stitutional command which leaves religion free can
avoid this quality of interplay. McGowan v. Maryland,
366 U. S. 420, 462 (1966). (Separate opinion of Mr.
Justice Frankfurter).
That such a common interest in education exists is desir-
able if not essential to the continued existence of a free
society so long as the State’s function is, as here, carefully
defined, limited and confined to secular as opposed to sec-
tarian matters. We do not view the First Amendment as
requiring an absolute separation between necessarily over-
lapping interests in the secular education of school-age
children. To require such a standard would assume that
the State and religion exist in mutually exclusive and
sharply defined spheres having no common natural inter-
est in the education of our youth. Such a view would not
comport with the extension of even police or fire protection
or other governmental services in the public interest.
Nor do we find persuasive the argument that the child
must be the direct beneficiary of government funds which
support secular education. Such an approach would place
form over substance in that a constitutional result would
depend upon minute distinctions and technicalities. The
child and society generally certainly benefit from the im-
provement of the secular education the child receives re-
gardless of whether there is a direct payment or loan to him
or to his parents or to his school or teachers. In our view
the constitutional result should not and cannot wholly de-
pend upon the identity of the payee. The use to which the
funds are put must be the primary concern.*!
The mandate of the First Amendment is neutrality
with respect to religious teachings, beliefs and practices.
21. The Supreme Court in Allen implicitly recognized this when
it noted the secular books on loan under New York’s statute were
ordered and stored by the parochial schools but were furnished for
the use of individual students. As such this secular use was in con-
formity with the Constitution. 392 U. S. at 244 n. 6.
ii
A98 District Court Opinion and Order
The Education Act does not employ religion as its standard,
The prerequisites to receiving government funds for the
purchase of secular educational services, we believe, are
designed to maintain the neutrality required by the Firs
Amendment. While it may be argued that the consequential
result of the instant statute may be to indirectly benefit non.
public sectarian schools, the purpose and primary effect of
the Education Act is secular in nature and such an ind-
dental benefit is not sufficient to infringe upon the non.
establishment principle of the First Amendment. As was
noted by Mr. Justice Harlan, concurring in Board of Edu.
cation v. Allen, supra:
[W]here the contested governmental activity is cal-
culated to achieve non-religious purposes otherwise
within the competence of the State, and where the
activity does not involve the State, ‘so significantly and
directly in the realm of the sectarian as to give rise to |
. divisive influences and inhibitions of freedom —
. it is not forbidden by the religious clauses of the
First Amendment. 392 U.S. at 249.
Admittedly, the line is not an easy one to draw. Hov-
ever, we believe the Education Act is consistent with neu-
trality towards religion and comes within the permissible
limits and spirit of the non-establishment principle. Con-
sequently, we will dismiss the plaintiffs’ complaint under
the establishment clause.
Plaintiffs also allege in their complaint that the Educa-
tion Act on its face and in its necessary operative effect
denies them the free exercise of religion. With respect to
each of the plaintiffs, it is alleged that ‘‘[i]t is against the
religious conscience of each of the plaintiffs to be forced
by operation of the taxing power into contributing to the
propagation of religion or for the support of sectarian
schools.’’ It is also alleged that the Act ‘‘constitutes con-
Aha meee
|
District Court Opinion and Order A99
pulsory taxation for the support of religion or religious
educational institutions.”’
With respect to the latter allegation, as we have de-
cided that the Education Act in purpose and primary effect
does not advance or support religion, such taxation, assum-
ing arguendo that it is compulsory, is not for the support of
religion. Consequently, this allegation must fall. With re-
spect to the former allegation, it is the purpose of the free
exercise clause of the First Amendment ‘‘to secure re-
ligious liberty in the individual by prohibiting any invasions
thereof by civil authority’’. School District of Abington
Township v. Schempp, 374 U. S. 203, 223 (1963). There is
no allegation in the plaintiffs’ complaint as to what their
particular religious beliefs are nor how the Education Act,
by authorizing the purchase of secular educational services,
coerces them in the practice of their religion. In dismissing
the free-exercise allegation in Board of Education v, Allen,
supra, the Supreme Court stated:
Appellants also contend that Ԥ 701 offends the Free
Exercise Clause of the First Amendment. However,
it is necessary in a free exercise case for one to show
the coercive effect of the enactment as it operates
against him in the practice of his religion’ Abington
School District v. Schempp, 374 U. S. 203, 223...
and appellants have not contended that the law in any
way coerces them as individuals in the practice of their
religion. 392 U.S. at 248.
Since these essential allegations are also lacking in this
case plaintiffs have failed to state a claim under the free-
exercise of the First Amendment and, therefore, their com-
plaint will be dismissed. In view of our disposition of
defendants’ motions to dismiss, we need not consider the
remaining motions.
Aurrep L. Luongo, J.
EK. Mac Troutman, J.
‘ , RON ee ERIE eee
PT SERRE A ML ET EPS eh Ee te Ny
POLS RNS. A Sia ce ERE RI 0 er
es oe
Se ee ee Te Re Wee eT
RIB an Peds AOS RE BY EP ARN CEE,
A100 District Court Opinion and Order
ORDER.
Anp Now, this 28th day of November, 1969, Ir |;
OrpERED that:
1. Defendants’ motion to dismiss the complaint as to
the organizational plaintiffs for lack of standing on all
issues raised herein is GRANTED.
2. Defendants’ motion to dismiss the complaint as to
plaintiff Lemon for lack of standing under the religious
clauses of the First Amendment is Dentep.
3. Defendants’ motion to dismiss the complaint as to
the remaining individual plaintiffs, Priscilla Reardon and
Betty J. Worrell, for lack of standing as taxpayers under
the establishment is Grantep.
4. Defendants’ motion to dismiss the complaint as to
individual plaintiffs Reardon and Worrell for lack of stand-
ing under the free-exercise clause is DENtEp.
5. Defendants’ motion to dismiss the complaint as to
all individual plaintiffs for lack of standing under the
equal protection clause is GranTep.
6. Defendants’ motion to dismiss the complaint for
failure of all plaintiffs to state a claim upon which relief
can be granted is Grantep.
By THE COURT,
Aurrep L. Luonco, |J/.
KE. Mac Trourmay, J.
APPENDIX A TO OPINION AND ORDER.
[See Appendix ‘‘A’’ to Complaint, pp. A18 to A25, supra.]
— .
Ea als te ties te 9 es ae
r
hts
Angst hess ph
we
NS a i ee prone,
District Court Opinion and Order A101
Hastie, Chief Circuit Judge, dissenting.
The basic question we have to decide is whether the
Pennsylvania Nonpublic Elementary and Secondary Educa-
tion Act, No. 109 of June 19, 1968, 24 P. S. § 5601, on its face
and construed in the light of certain factual allegations of
the present complaint which must be deemed correct on
motion to dismiss the complaint, violates the Establishment
Clause of the First Amendment, as made applicable to the
states by the Fourteenth Amendment.
The Act provides that the state shall pay public funds
to applying ‘‘nonpublic’’ elementary and secondary schools
- to reimburse them for having rendered ‘‘secular educational
- service’? through the teaching of certain subjects; namely,
sina i Nt le fhe ilgili Sa net ai
- mathematics, modern foreign languages, physical science
~ and physical education. Reimbursement to a school is author-
ized only for the cost of teachers’ salaries, textbooks and
instructional materials after and to the extent that such
costs have actually been incurred by the institution.
The complaint alleges that the great majority of the
schools eligible for subsidies under the Act are affiliated
with or under the control or direction of churches or are in
other respects sectarian schools or schools which teach re-
ligion and that the primary purpose as well as the principal
effect of the Act is thus to aid religious institutions. For
purposes of the present motion the majority opinion prop-
erly accepts as factually correct the complaint’s allegations
as to the religious and sectarian character of most of the
schools intended to receive and actually receiving state
grants in aid under the Act. However, that opinion char-
acterizes as an allegation of law, and therefore refuse to
accept as correct, the allegation that the primary purpose
and principal effect of the Act is thus to aid institutions of
religion. Instead, the majority seems to view the question
of the purpose and effect of the statute as foreclosed by
declarations in the statute itself that the legislative purpose
DAO RC er eR AO RR ee
Re SI Rp ES OS cae eas
A102 District Court Opinion and Order
is ‘‘to promote the welfare of the people of the Common.
wealth’’ and ‘‘to promote the secular education of childrey
attending nonpublic schools’’. With this I cannot agree:
But even if inquiry as to purpose and effect should be coy.
fined to examination of the language and scheme of th
statute, I cannot avoid the conclusion that the primary pur.
pose and effect of the enactment is to help the nonpublic
schools by supplying them with needed financial aid, while
whatever promotion of the public welfare is anticipated a:
a result of such public assistance is at best an incidental
consequence claimed in justification of the state’s action.
It merits mention at this point that both the statutory
text and the majority opinion make much of the concept that
the state ‘‘contracts to purchase secular educational serv.
ices’’, Actually, this phrase is not descriptive of the statu.
tory scheme. A nonpublic school that desires financial aid
under the Act need do no more than submit, on a form pre-
scribed by the state, an application designating the portions |
of its curriculum for which it wants assistance. The State
Superintendent of Education then agrees that the state will
do what the statute requires, namely, pay the school such
sums as Act No. 109 entitles it to receive. This is the so-
called ‘‘contract’’. The school need not undertake to ev-
large its curriculum or to increase its enrollment. Indeed,
it can decrease its enrollment and diminish its curriculum
and still qualify for state subsidy. It merely goes through
a prescribed procedure in asking for aid and later proving
that it has made expenditures that are reimbursable under
the Act, without ever obligating itself to do anything for or
in the interest of the state. The state buys no services and
the school sells none. The artificial characterization of this
1. This is not a disposition on summary judgment where the
factual posture of the case is established by affidavits and exhibits.
Here decision is controlled by the allegations of the complaint and
our judgment as to the potentiality of proof thereunder.
a
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District Court Opinion and Order A103
-ocedure as ‘‘contracting for secular educational services”’
yes not help solve our constitutional problem.
Certainly the Establishment Clause of the First Amend-
ent does not preclude the state from providing any as-
stance, no matter how indirect, to religious institutions.
s the majority opinion correctly indicates, religion’s in-
rest and the state’s interest in the public good necessarily
verlap. In contemporary experience churches and other
ligious institutions characteristically, and to their great
redit, conceive their mission and undertake their ministry
;rough various social means additional to the fundament
fworship. The providing of shelter and care for the needy
nd aged, education for youth, and other social services for
he community are all deemed an important part of organ-
ved church work. Yet, in the modern welfare state, similar
ctivities have long since won recognition as important
overnmental functions and responsibilities, from the per-
ormance and discharge of which religious institutions with
ike undertakings may derive incidental benefits. Thus,
‘here the state has supplied all school children with trans-
yrtation and books, sectarian educational enterprises .are
ndirectly aided by being relieved of a financial burden
‘hich they might otherwise feel obligated to bear. In Ever-
on v. Board of Education, 1947, 330 U. S. 1, and Board of
Education v, Allen, 1968, 392 U. S. 236, the Supreme Court
ecognized that the Constitution does not preclude a state
‘rom thus providing public services directly to its people
nerely because such services incidently aid religious insti-
utions. However, these cases do not suggest that the Con-
stitution permits direct public financing of a religious enter-
prise merely because such aid also benefits the state.
It is unrealistic to view the present statute as merely
subsidizing secular instruction and thus only incidentally
benefiting religious institutions by releasing their funds for
religious purposes. The primary purpose for which sec-
ees ee pee thee
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Al04 District Court Opinion and Order
tarian schools formulate and offer a comprehensive cur.
riculum apart from the public school system is religious,
Through a total educational program offered in a separate
religious environment, sectarian schools serve to inculeats
and reinforce in children doctrine and moral precepts de.
rived from the tenets of the church. It is not necessary to
inquire whether, for the fulfillment of this primary religious
purpose every course is taught with religious overtone.
The crucial consideration is that the total teaching program
is offered in a separate religious environment and for the
better achievement of appropriate religious objectives,
When the state reimburses a sectarian school for any part
of the curricular costs of such a teaching program it direetly
finances and supports a religious enterprise. Constitv.
tionally, such subsidizing of a religious enterprise is not
essentially different from a payment of public funds into
the treasury of a church. Such a prohibited involvement of
the state in a religious undertaking is not validated merely
because the religious enterprise itself incidentally relieves ,
the state of the cost of educating many children.
Even more important than the foregoing analytical dis.
tinction are the constitutionally significant consequential
distinctions between the present statute and those con-
sidered in the Everson and Allen cases. The statute in this
case, much more than those in Everson and Allen, invites
religious groups and organizations to act politically ani
involves the state intrusively in the affairs of religious
institutions.
It has already been pointed out that sectarian schools
are only part of the complex of activities, many of them as |
‘‘secular’’ as the teaching of languages and physical science,
which modern churches and religious institutions finanee
and conduct. Charities, hospitals, community centers ani
homes for the aged and infirm are familiar examples. The
theory that would validate Act No. 109 also unavoidably
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