# Appendix — Lemon v. Kurtzman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0315%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1971 - **Citation:** 403 U.S. 602 ## Text . | | TABLE OF CONTENTS OF APPENDIX. . Page i PE wv sicvccrevecssavecVeassteebecetsasexenstes Al 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 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: 2 og Bs 2 % bs 4 a : ~ us re a x Be 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 ‘§ 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 _——a—— 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 j : te Cae amehiets 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 — Ratt cot bs FEO IS — ——— District Court Opinion and Order A105 validates state subsidies for all such enterprises of religious organizations, as well as subsidies for all of the ‘‘secular”’ parts of sectarian education not included in the present statute. If the Constitutional bar to state grants in all such eases should be removed, it is reasonable to anticipate con- tinuing political controversy in every state and local com- munity whether and to what extent public funds are to be granted to subsidize a large number and a broad range of activities of religious organizations. Leaders and devout members of various organized religious groups will see it as their duty to their church or sect to seek such aid and to insist that state and local government contribute liberally to their sectarian enterprises. Legislators, government executives and candidates for elective office in whose judg- ment other claims upon the public purse merit higher priority can anticipate political opposition as enemies of the faith. In this way religion and politics will become in pari materia. So far we have escaped much of the divisiveness and antagonism of political differences and controversies about religious matters because public financing of activities of religious organizations has been understood to be pro- hibited by our Constitution. Professor Paul Freund has perceptively pointed out that President Kennedy was able to avoid taking a political position upon issues of religious character by relying upon authoritative decisions on the Constitutional separation of state and religion as control- ling. Freund, Public Aid to Parochial Schools, 1969, 82 Harv. L. Rey. 1680, 1692. But if the present statute is held to be Constitutional, I see no escape from the evils that attend a widespread and pervasive intermingling of politics and religion. The other side of the coin is the inevitablity of state intrusion into the affairs of organized religion in the ad- ministration of the present statute. As already stated, it is A106 District Court Opinion and Order the justifying imperative of most, if not all, church Spon- sored and controlled education that formal education shall serve to inculcate and reinforce in youthful minds sectarian doctrine and moral precepts derived from the tenets of the church.* In schools with such a mission it is appropriate, practically unavoidable, that admission policies and prac- tices reflect a preferance for enrollment of children of the sponsoring faith, though not necessarily excluding all others. Yet, once the state joins in financing such educa- tion, the mandated equalitarian position of the state must result in state imposition of strictly non-discriminatory ad- mission standards consistent with public duty,* whatever sacrifice of appropriate religious objectives may result. I cannot square such state intrusion into religious affairs with the concept of separation of church and state which the First Amendment implements. The same is true in the matter of curriculum. If the state is to finance ‘‘secular’’ teaching in parochial and other church related schools, the state must have the power and responsibility of monitoring curriculum and instruction to assure that teaching in these state supported areas is not so oriented as to inculcate sectarian or religious tenets or doctrines. Indeed, Act No. 109 expressly provides for 2. See L. Pfeffer, Church, State, and Freedom, 1953, 290-300: See also Rev. S. Woywood, The New Canon Law, under imprimatur of Most Rev. Francis Spellman, Archbishop of New York, and others (1940), quoted in Everson v. Board of Education, 330 U. S. 1, 18, 22-23 (Jackson, J., dissenting). 3. Cf. Evans v. Newton, 1966, 382 U. S. 296: Burton v. Wil- mington Parking Authority, 1961, 365 U. S. 715: Cooper v. Aaron, 1958, 358 U. S. 1, 16-19; Pennsylvania v. Board of Directors of City Trusts, 1957, 353 U. S. 230; Kerr v. Enoch Pratt Free Library, 4th Cir. 1945, 149 F. 2d 212. It is difficult to see how the provision of the Pennsylvania Fair Educational Opportunities Act that sanctions religious discrimina- tion in admission policies and practices of sectarian schools could validly be applied to sectarian schools that receive public financing under Act No. 109. 24 P. S. §5004(c). —— Oo oo ae ee ee oe ee a lL ll llUlUel ll ll | District Court Opinion and Order A107 state approval of text books and teaching materials in all subsidized schools. The substantiality of this involvement ‘s indicated by Mr. Justice Douglas in the course of his dissent in Board of Education v, Allen, 392 U. S. 236, 258- 62, where he elaborates numbers of instructive examples of sectarian orientation in teaching materials appropriately used in the teaching of ‘‘secular’’ subjects in church re- lated schools. The extent to which religious orientation of secular subjects will become an appropriate subject of state inquiry is also suggested by interrogatories which the plaintiffs in this suit have addressed to the defendant schools. For example, the church related schools have been asked to disclose the extent to which sectarian precepts are involved in the teaching of secular subjects; whether teach- ers of such subjects are clerics, and what religious materials and symbols are used or displayed in the schools in connec- tion with activities other than religious ceremonies. It is dificult to imagine a type of intrusion by the state more offensive to a religious community than such pervasive monitoring and investigation of instruction and academic organization in order to purge the secular areas of the cur- riculum of religious orientation. Yet, it is to just such in- trusion that the Pennsylvania statute opens the door, if by necessary implication it does not go farther and mandate the entry of state overseers as the only means by which the state can adequately check upon the initial and continuing eligibility of particular ‘‘secular’’ instruction for state fizancing.* Mr. Justice Goldberg, in Abington v. Schemp, 1963, 374 U. S. 203, 248 and Mr. Justice Harlan, in Board of Educa- ‘ion v. Allen, 392 U. S. 236, 249, have both expressed what I believe to be a sound rationalization that the First Amend- 4. Act No. 109 explicitly restricts state aid to courses which “shall not include any subject matter expressing religious teaching, or the morals or forms of worship of any sect”. me LRT D ep IRIAN SAS tN ARE a RY HEA RRS PINAR NL TES OT NENG A108 District Court Opinion and Order ment is violated by state action which will ‘involve the state so significantly and directly in the realm of the sw. tarian as to give rise to those very divisive influences and inhibitions of freedom which both religious clauses of the First Amendment preclude’. I am unable to avoid the conclusion that the state undertaking authorized by Act No, 109 would thus intolerably involve the state in the realm of the sectarian. It must also be considered that some of the schools eli- gible for aid under Act No. 109 appear to be non-sectarian private schools which do not include religious training in their educational programs. Obviously, the First Amend. ment does not debar state aid to such schools. However, the plaintiffs allege and seek to prove statistically that only a very small minority of the eligible schools are of this character and that this fact and the legislative history of the statute combine to show that the primary purpose and effect of the legislation is to aid sectarian schools. I ib x the plaintiffs should be permitted to show, if they can, tuat the inclusion of non-sectarian private schools as institutions eligible for state aid is so minor and incidental an aspect of the statutory scheme that it cannot validate the enactment. It remains to consider the claim that subsidizing the defendant non public schools as authorized by the statute would deny the plaintiffs the equal protection of the laws. I agree with the majority that the organization plaintiffs lack standing to challenge the legislative scheme under either the First Amendment or the Equal Protection Clause. I also agree that no individual plaintiff alleges that any discrimination practiced by any of the defendant schools affects him or his children in a way that would give him standing to litigate the equal protection issue. Finally, while I agree with the majority that plaintiff Lemon does and the other individual plaintiffs do not have standing to litigate the alleged violation of the Establish- SA te cate eis “ District Court Opinion and Order A109 ment Clause on the basis of the requirements enunciated by the Supreme Court in Fiast v. Cohen, 1967, 392 U.S. 83, my reasoning is somewhat different and leads to the conclusion that, except for Lemon, the individual plaintiffs lack stand- ing under the Free Exercise Clause even more clearly than under the Establishment Clause. In Flast v. Cohen, federal income taxpayers alleged that the expenditure of federal funds under the Elementary and Secondary Education Act of 1965 to finance instruc- tion in sectarian schools and to purchase educational ma- terials for use in such schools violated the religion clauses of the First Amendment. The taxpayers’ bill for a declara- tory judgment and an injunction was dismissed by a three-judge district court for lack of standing. The Su- preme Court reversed, holding that the plaintiffs had satis- fied the requirements of a logical connection between their status as taxpayers and both ‘‘the type of legislative enact- ment attacked’’ and ‘‘the precise nature of the constitu- tional infringement alleged’’. 392 U. S. at 102. The Supreme Court relied principally on its finding that the Establishment Clause was designed to limit the taxing and spending powers of Congress and specifically declined to decide whether the taxpayers’ free exercise claim alone would confer standing. 392 U.S. at 104 n. 25 In this case, the ultimate source of funds for the chal- lenged payments under Act No. 109, and the only source, is the admission tax on harness races, 15 P. S. § 2606 (1967), and on thoroughbred races, 15 P. S. § 2656 (Supp. 1969). Plaintiff Lemon alleges that he has paid an admission fee to a harness race, including the tax. All three individual plain- tiffs allege that ‘‘[i]t is against [their] religious conscience to be forced by operation of the taxing power into con- tributing to the propagation of religion or for the support of sectarian schools’’. The majority opinion apparently construes the latter allegation to mean that, except for Lemon, the individual plaintiffs have refrained from attend- Didi ees See A110 District Court Opinion and Order ing the races because to do so would require them to sup- port parochial education. However, the complaint contains no factual allegation that these plaintiffs desire to go to the races and have been deterred by reason of the known application of the racing revenues to the purposes of Act No. 109, and none of the individual plaintiffs has alleged any particular religions belief or any effect of Act No. 109 on the practice of a particular religion. The individual plaintiffs other than Lemon can only be considered ‘‘taxpayers’’ within the scope of the standing requirements of Flast v. Cohen, if their ‘‘tax money is being extracted and spent in violation of specific constitutional protections. . . .’’ 392 U. S. at 106. The plaintiffs who have not attended horse races have not alleged that their ‘‘tax money is being extracted’’ by Act No. 109 unless by virtue of a theoretical increase in general tax requirements that might result from the failure to allocate racing rev- enues to general expenses. However, Flast v. Cohen pointed out that where a challenged tax operates ‘‘upon a particular class of taxpayers . . . the proper party em- phasis in the federal standing doctrine would require that standing be limited to the taxpayers within the affected class’’. 392 U. S. at 104 n. 25. Although the Supreme Court was referring to taxpayer standing under the Free Exercise Clause in the quoted dictum, the required nexus between taxpayer status and ‘‘the type of legislative enact- ment attacked’’, 392 U.S. at 102, also depends on actual or threatened liability for a tax in a challenge under the Establishment Clause. In order to have ‘‘the requisite per- sonal stake in the outcome’’, 392 U.S. at 101, the plaintiffs should have an established monetary interest in the relief sought, rather than an interest that will be realized only if judicial action enjoining expenditures supported by a particular tax program to which plaintiffs are not subject — District Court Opinion and Order Alll shall result in a decrease in general tax burdens. There- fore, the individual plaintiffs other than Lemon do not have taxpayer standing to challenge Act No. 109 under either of the religious clauses because they do not contribute rev- enues disbursed under the Act, and are not ‘‘taxpayers within the affected class’’. On the other hand, such a taxpayer as plaintiff Lemon, who is subject to the tax program that supports the par- ticular statutory scheme sought to be enjoined, ‘‘may or may not have the requisite personal stake in the outcome. _ 2? 392 U.S. at 101. Focusing upon the nexus between Lemon’s status as a taxpayer and ‘‘the precise nature of the constitutional infringement alleged’’, 392 U. S. at 102, Lemon does complain that he has been required to con- tribute in support of an establishment. Although Lemon was not compelled to attend a harness race, he has been constrained by the state government to pay a tax on his attendance, a tax that is specifically earmarked by statute for purposes that allegedly support an establishment of re- ligion. In view of the primary function of the Establish- ment Clause in restraining taxation and disbursement in support of religion, the tax Lemon has paid possesses a sufficient connection to the challenged expenditures under Act No. 109 and to the alleged Constitutional infirmity of the Act to lend the requisite specificity and adverseness to his claim. Accordingly, I conclude that plaintiff Lemon has standing to attack the validity of the legislation under the Establishment Clause. As to all plaintiffs I would dismiss so much of the claim as alleges a violation of the equal protection clause because of lack of standing to sue. However, in my view, the allegations of the complaint disclose a legislative scheme violative of the Establishment Clause of the First Amend- ment, as to which plaintiff Lemon alone shows standing to A112 District Court Opinion and Order complain. As to Lemon’s First Amendment claim, the motion to dismiss should be denied. Wituam H. Hastie, Fi Chief Judge, Court of Appeals for the Third Circuit. | a th Be 4 a seit ‘lapia sztyz JO UOTSTOep 10 UOTIBVISPTSUOD oy UT 3zed OU YOO? TTBYsSIBW SedFIENL “IW OL6T ‘OZ 1F2dV¥ *zepueteo s20umns 943 UO pece{d St esvd ey PUB pej0U St uot oT pseszane etqeqoid ‘32n09 ey3 Aq perzepysuos pus pe 33 ;uqns ueeq ZuyAey e8Bd STYI UF UOFIOFpSTanf Jo Quewe7e38 Sy] *pyusatKsuueg JO 2OFAWSTC ur0Aseq BY 103 33N0D 39F338FQ 8038IS PeITUN S42 wWoIZ ‘TVAddV ‘Te 30 ‘ezueaTAsuueg JO 438M -uommod 943 JO VOFIONAASUT SFTWQNd FO quepuejutzedns se ‘uswzjiny °*H prAed °A *sjue{ {eddy ‘ere 30 ‘uowey] *f uoITV 69 61 ‘way 1090990‘ e-e= 68TT ON SIJLISS QINUED 3G JO JanoD amiaadne --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0315%3A01. Public record. Not legal advice.