Appellants Brief — Sloan v. Lemon

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INDEX TO BRIEF

PAGE

Opinion Below .........0-eeeeeeeeeeees 2

Constitutional and Statutory Provisions In-

NN OT ot sew ed h soe se ewes 2

Question Presented .......2...0esceeeeeoes 3

Statement of the Case ...........---+e0-- 4

Summary of Argument .............+++-- 6

Argument:

I. The Purpose and Primary Effect of the

Act Relate to the Serious School Finan-

cial Problem of the Commonwealth .. 7

A. The legislative intent is real and un-

comipadicted> i. les «ins h o oie ne 7

B. The primary objective and effect of

the Act are economic and not reli-

i eer ere eres ae 9

Il. Incidental Effects Do Not Create Un-

constitutionality Because of Asserted

Religious Benefits, Entanglement and

DEVERIVORIONS nce 50:00:05 bie» pape 002 14

A. Mere benefits incidentally accru-

ing to religious groups are immate-

roe h eek es bho been eke 14

B. No entanglement is involved ..... 16

C. Minimal payments for benefits do

not significantly entail political dis-

agreement on religious grounds .._ 17

i

tee: SUN ee ce SS 20

TABLE OF CITATIONS

CASEs:

Board of Education of Central School Dist. No.

1 v. Allen, 392 U.S. 236 (1968) ...8,9, 11,

14, 15, 16

Everson v. Board of Education, 330 U.S. 1

SPONT eoe ren i ee 8,9, 11, 14, 15, 16

Lemon v. Kurtzman, 403 U.S. 602 (1971)

8, 17,19

Tilton v. Richardson, 403 U.S. 672 (1971)

11, 14, 16, 19

Walz v. Tax Commission, 397 U.S. 664

CSOD ian ee ee 11, 14,17

Wolman v. Essex, 342 F. Supp. 399 (S.D.

Ohio 1972) aff’d sub nom. Essex v. Wol-

man, US. , 41 U.S.L.W. 3182

(Octones 16; 1972) 5 oe ee 13, 14, 18

U. S. CoNSTITUTION:

ram Aaa Se 2,11, 13

PENNSYLVANIA CONSTITUTION:

ere ate, Gee oo 8

STATUTES:

Parent Reimbursement Act for Nonpublic Ed-

ucation, Pa. Stat. Ann., Tit. 24, §5701 et

seq. (Supp. 1972) ...2,4,6,7,8, 9, 10, 11, 12,

16, 17, 18, 19, 20

ii

OOR COPY

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Pennsylvania Cigarette Tax Act, Pa. Stat. Ann.,

Tit. 72, §3169.101 et seq. (Supp. 1972) 18

AUTHORITIES:

Ely, Legislative and Administrative Motivation

in Constitutional Law, 79 Yale L.J. 1205

CAME aS Caio 5 a eke ie sie 11

MISCELLANEOUS:

Statistical Report of the Secretary of Educa-

tion for the School Year Ending June 30,

1971

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Caption 1

IN THE SUPREME COURT OF THE

UNITED STATES

October Term, 1972

No. 459

GRACE SLOAN as State Treasurer of the

Commonwealth of Pennsylvania

and

JUSE DIAZ and ENILDA DIAZ, His Wife, WIL-

LIAM ZIMMERSPITZ and NANCY ZIMMER-

SPITZ, His Wife, F. CARL KRETZMANN and

KATHERYN L. KRETZMANN, His Wife, ARTHUR

HARVEY and MURIEL HARVEY, His Wife,

DANIEL F. X. POWELL and ANNA T. POWELL,

His Wife, SETH W. WATSON, JR., and ANNE P.

WATSON, His Wife, and HENRY E. CROUTER,

Appellants

v.

ALTON J. LEMON, NEAL F. BRACKEN, and

BENJAMIN S. LOWENSTEIN,

Appellees

On Appeal from the United States District Court for

the Eastern District of Pennsylvania.

2 Opinion Below

Provisions Involved

BRIEF FOR APPELLANT, GRACE SLOAN

OPINION BELOW

On July 21, 1972, the three-judge District Court

granted Appellees’ (plaintiffs below) Motion for

Summary Judgment based on an Opinion of April

6, 1972, which denied Appellants’ (defendants’ be-

low) Motions To Dismiss. That Opinion is reported

at 346 F. Supp. 1356 (E.D. Pa. 1972) and is in the

Appendix beginning at page 37a.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitution of the United States, Amendment I,

as applicable to the States by the Fourteenth Amend-

ment:

“Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof . . .”

Parent Reimbursement Act for Nonpublic Educa-

tion, Act 92 of the Laws of Pennsylvania, 1971, P. L.

——, Pa. Stat. Ann., Tit. 24, §5701, et seq. (Supp.

1972) (hereinafter, the Act). The Act is set forth

in the Appendix, commencing at page 56a.

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Question Presented 3

QUESTION PRESENTED

Is the Constitution violated by a State’s econom-

ically motivated program for parental reimbursement

of a small portion of the cost of nonpublic education

which helps to relieve the State of its burden of

supplying education to the children of such parents?

4 Statement of the Case

STATEMENT OF THE CASE

The Commonwealth of Pennsylvania in enacting

its Parent Reimbursement Act for Nonpublic Educa-

tion stated in the title of the Act that its purpose was

to avoid “increased costs of public education” (App.

56a). Section 2 of the Act further stated that parents

who maintain their children in nonpublic schools

“provide a vital service to the Commonwealth” (App.

58a). Under the Act parents of nonpublic students

are reimbursed $75 for elementary school tuition and

$150 for secondary school tuition.

On September 13, 1971, Appellees filed a Com-

plaint attacking the Act and alleging that it violated

the Establishment, Free Exercise and Equal Protec-

tion Clauses of the Constitution. Thereafter, parents

of children attending sectarian and nonsectarian non-

public schools in the State intervened as parties

defendant.

All defendants moved to dismiss the Complaint

for failure to state a claim for relief. On April 6,

1972, the three-judge District Court denied these

motions (App. 56a). On April 28, 1972, the Court

granted motions of the defendants to dismiss those

counts of the Complaint relating to the Free Exercise

and Equal Protection Clauses (App. 64a).’

After all defendants filed answers, plaintiffs moved

for summary judgment. That motion was granted

1 Appellees have not appealed from that determination.

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Statement of the Case 5

on July 21, 1972 and the Court, relying on its pre-

viously filed Opinion of April 6, 1972, permanently

enjoined the State Treasurer from paying any funds

to parents of children attending nonpublic schools.

6 Summary of Argument

SUMMARY OF ARGUMENT

A legislatively stated purpose, real and uncon-

tradicted, should be given due regard in the exercise

of judicial power to upset legislative enactments. In

this case the legislative purpose is stated unequivo-

cally and there is no contrary averment of the fact.

The principal and primary effect of the Act is the

achievement of its stated purpose. Other effects of

the Act are not truly significant because: (1) bene-

fits to religion are only incidental and indirect; (2)

there is no entangling relationship with religion; and

(3) a small payment for valuable services which are

the primary obligation of the Commonwealth under

its Constitution does not create a climate for signifi-

cant political disagreement.

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Argument 7

ARGUMENT

I. THE PURPOSE AND PRIMARY EFFECT

OF THE ACT RELATE TO THE SERIOUS

SCHOOL FINANCIAL PROBLEM OF THE

COMMONWEALTH

The constitutionality of enactments frequently

turns upon the real purpose of the legislation. Legis-

lative findings can support the constitutionality of an

act. Constitutionality that turns upon facts is subject

to judicial review. First, it will be shown that the

purpose of the Act is bona fide and uncontested. Sec-

ond, it will be shown that the primary objective and

effect of the Act is economic and not religious.

A. The Legislative Purpose Is Real and

Uncontradicted

In no uncertain terms the Legislature stated its

purpose in the title of the Act as follows:

“Creating an authority for the purpose of

avoiding increased costs of public education by

providing partial reimbursement for nonpublic

education and defining its powers and duties.”

(Emphasis supplied.) Preamble, Act (App.

56a).

8 Argument

Section 2 of the Act declared the: public policy of

the Commonwealth, making its legislative finding

that (1) “parents who send their- children to non-

public schools assist the State in reeducing the rising

costs of public education;” (2) tthe welfare of the

Commonwealth mandates a compyulsory school at-

tendance law; (3) rising costs place in jeopardy the

ability of parents to carry the burrden of nonpublic

education as a major contribution ‘to public welfare;

and (4) operating and capital costss, if there were no

nonpublic schools, would amount: to $400,000,000

annually for operations and $1,000,000,000 for the

construction of new facilities, and any substantial

portion of those operating and capital costs would

seriously jeopardize public education (App. 57a-

58a).

The stated legislative purpose ijs clear and there

can be no question at this juncture that the State has

a pervasive and legitimate interest in the education

of its citizens. “‘[The State’s] intterest is education,

broadly; its method, comprehensive. Individual in-

terests are aided only as the common interest is safe-

guarded.’ [citation omitted.]” Board of Education

of Central School Dist. No. 1 v. Allien, 392 U.S. 236,

247 (1968); Pa. Const., Art. III, $14. Moreover, as

this Court recognized in Lemon \y. Kurtzman, 403

U.S. 602, 613 (1971), “A State always has a legiti-

mate concern for maintaining minijgum standards in

all schools it allows to operate.” The State has

expressed its concern in enacting this legislation and

its publicly expressed purpose must be afforded due

deference. Lemon v. Kurtzman, supra, at 613; cf.

Everson v. Board of Education, 330 U.S. 1, 6-7

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Argument 9

(1947). This is especially so where there is nothing

in the record before this Court from whence a con-

trary conclusion could be drawn. A comparable

point is made in Allen, supra, at 243, as follows:

“* * * The express purpose of §701 was

stated by the New York Legislature to be further-

ance of the educational opportunities available

to the young. Appellants have shown us nothing

about the necessary effects of the statute that

is contrary to its stated purpose. * * *”

B. The Primary Objective and Effect of the Act

Are Economic and Not Religious

In 1970, 517,000 students were enrolled in non-

public schools. Statistical Report of the Secretary

of Education for the School Year ending June 30,

1971, Table 28. The total enrollment of pupils in

public schools at the same time was 2,407,000. Id.

Table II. When one considers that the total general

fund expenses compiled from the annual financial

reports of Pennsylvania school districts show the

total cost per public school pupil in the school year

1970-71 to be $980.82 (Id., Table 56) it must be

acknowledged not only that a parent is performing a

valuable service to the State by educating his child in

a nonpublic school (for which he will receive under

the Act a small amount in return for his service)

but also that a tremendous financial burden would

be placed on the State by the enrollment of a sub-

stantial number of nonpublic students in public

10 Argument

schools. It was this overriding consideration which

led to the passage of the Act.

The overwhelming cost to the State of educating

a substantial number of nonpublic school students in

the public school system is a fact of record in this

case. The uncontroverted legislative finding has

determined that the financial burden to the State of

undertaking such an effort would be approximately

one and a half billion dollars. Assuming the State

had the wherewithal to finance such a magnitudinous

undertaking, it cannot be gainsaid that education

throughout the State would suffer drastically during

the period of transition.

A high estimate of the cost of the parent reim-

bursement program would be approximately 75 mil-

lion dollars. When this amount is compared with

‘the legislature’s determination that the cost to the

State of educating all nonpublic school students in

public schools would be one and a half billion dol-

lars, it can be seen that the Act constitutes a sound,

economical means of saving the State vast sums of

money and assures the continuation of equal educa-

tional opportunities for all school children in the

Commonwealth.

Moreover, the means employed by the legislature

to avoid this real and substantial economic burden

is constitutionally sound.

A close scrutiny of the Act reveals that it is the

best possible alternative to achieve the proper secular

purpose of the Act (to save the State massive amounts

of money) and to avoid any benefits to sectarian non-

public schools except the most tangential and indirect

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ve Argument 11

ones. From decisions of this Court, this is precisely

what the “‘primary effect’ theory requires of all states

to comply with the First Amendment. They must

seek to serve a secular purpose and, in accomplishing

this purpose, must use the alternative available which

least benefits, tangentially and indirectly, the sectarian

interests. See Everson, supra; Allen, supra; Walz,

supra and Tilton, supra. This approach is more

readily acceptable under the existing state of the

law than that urged in Ely, Legislative and Adminis-

trative Motivation in Constitutional Law, 79 Yale

L.J. 1205, 1322 (1970) where the author espouses:

“The Court should intervene only on the basis of

proof of an intention to favor or disfavor religion

relative to nonreligion, or one religion relative to

others.”

The Act gives money to parents in the form of a

tuition reimbursement. Payment is made only after

the parent has paid tuition and only after the school

year for which reimbursement is sought has passed.

Payment is not made to the school, nor is there any

requirement whatsoever placed on the parent to use

the money received either to pay his child’s tuition

for the following year or to use it for any religious or

nonreligious purpose.’ There is no requirement that

the parent continue to maintain his child in a non-

we ewe oO O™ SO FlUhe UU

*The instant legislation bears witness to the care em-

ployed by the drafters. The legislature did not direct pay-

ments to be made directly to the school, nor did it give moneys

to parents for transmittal to the school. Rather it employed

a reimbursement program to secure the best possible means

of effecting its purpose without at the same time advancing

religion.

12 Argument

public school of any kind, be it sectarian or non-

sectarian. The Act is designed to provide assistance

to parents to enable them to maintain their program

of using nonpublic schools.

The three-judge Court did not grasp the full sig-

nificance of this act and therein lies its error. The

Court concluded that “the effect of the Act is to aid

the schools” (App. 51a) and that the failure to ensure

that the reimbursement which the parent receives is

restricted to use for nonreligious services or activities

renders the Act unconstitutional. This is erecting a

high wall indeed!

The three-judge Court observed: “If parents can-

not afford to pay the tuition, they must take their

child out of the nonpublic schools and if enough

parents are unable to pay these costs, the schools will

be forced to close” (App. 52a). The Court then

stated, apparently contradicting its earlier finding that

the Act had a valid secular purpose, that it was “pre-

cisely this possibility that led” to the enactment of

this legislation (App. 52a). Firstly, the uncontro-

verted legislative findings belie this conclusion. Sec-

ondly, the Court has confused one possible effect with

the “principal and primary effect.”

The State’s paramount concern was not the closing

of nonpublic schools; it was avoiding “increased

costs of public education” (App. 56a) by any sig-

nificant shift of students from nonpublic to public

* schools, coupled with the serious general problem of

inflation. Any tangential benefit which sectarian

schools might derive from the effectuation of this

overriding State interest is purely that: tangential,

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Argument 13

and nothing more. Most significant, however, is

that the District Court completely distorts the mean-

ing of the “principal and primary effect’’ test. Thus,

the Court states that the principal and primary effect

test does not mean that a Court is required to conclude

that “the scheme of assistance will necessarily aid

religion” (App. 49a). If principal and primary

effect does not at least mean that much, then a poor

choice of words has been employed in articulating

this test.

The recent decision in Wolman v. Essex, 342 F.

Supp. 399 (S.D. Ohio 1972) (three-judge District

Court), aff’d sub nom. Essex v. Wolman, US.

, 41 U.S.L.W. 3182 (October 10, 1972) war-

rants discussion. The case concerned a First Amend-

ment attack on a section of an Ohio Statute which

provided for educational grants to parents of children

in nonpublic schools to reimburse them for a portion

of the cost incurred by them in educating their chil-

dren. The thtee-judge District Court found this leg-

islative plan to be unconstitutional. Significantly,

the Court, while it did discuss the principal and

primary effect test (342 F. Supp. at 412-413), was

unable to conclude that the principal and primary

effect of the legislation was the advancement of

religion. 342 F. Supp. at 413. The Court did find

the enactment violative of the third prong of this

Court’s tripartite test for Establishment Clause ques-

tions namely that the legislation created an entangling

relation between religion and the State.

There are several substantial differences between

the Pennsylvania and Ohio Acts, and they are dis-

cussed in Part II of this brief. The point, however,

14 Argument

is that this Court, in summarily affirming that case

did not even by implication pass on the merits of

this case since the Wolman decision was not predi-

cated upon the principal and primary effect test.

Il. INCIDENTAL EFFECTS DO NOT CREATE

UNCONSTITUTIONALITY BECAUSE OF AS.

SERTED RELIGIOUS BENEFITS ENTANGLE-

MENT AND DIVISIVENESS

A. Mere Benefits Incidentally Accruing to Religious

Groups Are Immaterial ‘

This Court has recognized repeatedly that the

principal and primary effect test does not turn on

whether a religious institution derives some benefit

from a government program. Thus, the fact that

one of the consequences of a given act may tan-

gentially benefit religion is not determinative. For

certainly in Everson, Allen, Walz, and Tilton y.

Richardson, 403 U.S. 672 (1971), religious institu-

tions derived some “aid”. Walz, supra, at 670-673.

As this Court made clear in Tilton, supra, at 679:

“The crucial question is not whether some

benefit accrues to a religious institution as a

consequence of the legislative program, but

whether its principal or primary effect advances

religion.”

In Everson, supra, this Court held that a New

Jersey statute which authorized the spending of tax

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Argument 15

raised funds to pay the bus fares of parochial school

pupils as part of a general program under which it

paid the fares of pupils attending public and other

schools did not violate the Establishment Clause. In

reaching this conclusion, this Court recognized that

the children and parents were the principal bene-

ficiaries of the legislation even though the Church

schools would derive some benefit from such a pro-

gram: “It is undoubtedly true that children are

helped to get to church schools. There is even a

possibility that some of the children might not be

sent to the church schools if the parents were com-

pelled to pay their children’s bus fares out of their

own pockets when transportation to a public school

would have been paid for by the state.” Jd. at 17.

This Court did not deem such an ancillary benefit to

the church schools to be controlling.

In Allen, supra, this Court held a New York law

requiring school districts to purchase textbooks and

loan them free of charge to students enrolled in

church-related schools as well as in public and pri-

vate schools to be consistant with the dictates of the,

Establishment Clause. Again, this Court recognized

that the principal beneficiaries of the legislation were

the students. Id. at 243. Again, this Court did not

find controlling the possibility that the church-related

schools might benefit from the program:

“Perhaps free books make it more likely that ~

some children choose to attend a sectarian school,

but that was true of the state-paid bus fares in

Everson and does not alone demonstrate an un-

constitutional degree of support.” Id. at 244.

16 Argument

Most recently, in Tilton v. Richardson, supra, this

Court, in upholding the construction grant program

for church-related colleges and universities under the

Higher Education Facilities Act of 1963, recognized

that construction grants “‘surely aid these institutions

in the sense that the construction of buildings will

assist them to perform their various functions.” Id,

at 679. Yet this factor did not persuade the Court

that the principal and primary effect of the legislation

was the advancement of religion.

Asean alternative holding, the District Court below

concluded that ‘“‘the Act supports religion because it

aids parents in providing a religious education for

their children” (Appendix, p. 54a). But as this

Court expressly recognized in Everson and Allen,

the possibility that parents, might withdraw their

children from nonpublic church-related schools be-

cause of a lack of the state assistance involved, does

not in and of itself indicate that the principal and

primary effect of the legislation was the advancement

of religion.

—_—_ >

B. No Entanglement Is Involved

The three-judge district Court, having concluded

that the effect of the Act was the advancement of

religion, did not formally determine whether the Act

gave rise to an entangling relationship between re-

ligion and the State. However, implicit in the Court’s

determination was a recognition that there is no

problem of “entanglement” with this legislation.

Thus, the Court noted in a footnote that only if the

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Argument 17

Act included restriction on the use of the funds

given to the parents would the State have to concern

itself with avoiding excessive entanglement with

religion in administering these restrictions (App. 52a,

footnote 8).

The Act, of course, places no restrictions on what

the parents may do with the funds they receive. In

addition, Section 4 of the Act, unequivocally states

that the Pennsylvania Parent Assistance Authority

“shall exercise no direction, supervision or control

over the policy determinations, personnel, curriculum,

program or instruction or any other aspect of the

administration or operation of any nonpublic school

or schools” (App. 60a). It can be seen from the

terms of the Act itself that it countenances no direct

relationship between the funding authority and the

nonpublic schools. Absent even a tangential rela-

tionship, it is impossible to conclude that the Act

could give rise to excessive entanglement. Certainly .

the Reimbursement Program does not “encompass

sustained and detailed administrative relationships

for enforcement of statutory or administrative stan-

dards.” Walz, supra, at 675. ;

»

C. Minimal Payments for Benefits Do Not Signif-

_ icantly Entail Political Disagreement on Religious

Grounds

This Court has recently become concerned with

the “divisive political potential” (Lemon v. Kurtz-

man, supra, at 622) of State programs which are

attacked on Establishment Clause grounds and the

18 Argument

possibility of political division along religious lines,

There is nothing in the Act itself or its history or

in the record in this case which might suggest that.

such a potential exists here.

The fund from which a parent receives reimburse-

ment under the terms of the Act is created by setting

aside to the use of the Parent Assistance Authority a

fixed percentage of the tax revenues collected by the

Pennsylvania Department of Revenue pursuant to the

Act of July 22, 1970, P. L. 513, Pa. Stat. Ann. Tit.

72, §3169.101, et seq. (Supp. 1972) known as the

“Pennsylvania Cigarette Tax Act.” Thus, the Parent

Reimbursement Fund does not depend on annual ap-

propriations. Moreover, payments to parents can

be made only from that fund and from no other

source (Section 4 of the Act,.App. 60a). Section

9 of the Act (App. 62a) reinforces this point by

providing that in the event there are insufficient

monies in the Parent Reimbursement Fund to pay

all the claims submitted by parents a proportionate

amount would be paid to each claimant based on

the total amount contained in the Fund. This is

one striking difference between the Act and the legis-

lation held unconstitutional in Wolman vy. Essex,

supra.

The Ohio Parent Reimbursement Plan provided

that the amount of monies distributed to claimants

could not exceed the specific appropriations made

therefor by the Ohio General Assembly. Thus that

program was fraught with the possibility of annual

legislative and public debates on the proper size of

the appropriation. That possibility does not exist

here. Furthermore, the Ohio Reimbursement Pro-

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Argument 19

gram contained a provision which allowed the Ohio

Board of Education to “determine” the amount of

reimbursement for subsequent years and presumably

to increase or decrease the amount of reimbursement.

There is no such ongoing friction point in the Penn-

sylvania Act.

The Act thereby avoids the problem of political

fragmentation on religious lines which this Court

found to be present in the legislation found uncon-

stitutional in Lemon v. Kurtzman. Here, this Court

is not “confronted with successive and very likely

permanent annual appropriations that benefit rela-

tively few religious groups” 403 U.S. at 623. Rather,

a percentage of the revenue collected pursuant to an

ongoing collection process is diverted’ to create the

Parent Reimbursement Fund.

Just as there is nothing in the Act itself to indicate

that it is fraught with the potential for political

divisiveness, neither is there anything in the record

in this case to suggest it. As this Court recognized

in Tilton, it is “difficult to document” those factors

which might indicate that a given piece of legislation

creates or increases the potential for divisive religious

fragmentation in the political arena. 403 USS. at

688. But this Court properly observed that the

burden is on the party attacking the constitutionality

of the legislation on this ground to point to “‘any con-

tinuing religious aggravation on this matter in the

political processes.” Id. Appellees herein have not

pointed to anything which might remotely approxi-

mate divisiveness on religious lines.

Argument

III. CONCLUSION

The discussion of the constitutional standards in

Establishment Clause cases have necessarily been

treated separately in this brief for purposes of analy.

sis. Yet, in determining the constitutionality of the

Act, this Court must synthesize those tests and deter-

mine, on the whole, whether this Act is a law re

specting the establishment of religion. The undis-

puted economic motivation of the Pennsyivania legis-

lature and its mode of effectuation, examined in all

aspects, are clearly secular in fact as well as in law.

Accordingly, the Order of the Lower Court granting

sumrhary judgment to appellees should be reversed,

and summary judgment should be directed in favor

of the appellants.

Respectfully submitted,

ISRAEL PACKEL

Attorney General

PETER W. BROWN

Deputy Attorney General

J. JUSTIN BLEWITT, JR.

Deputy Attorney General

Attorneys for Appellants

State Capitol Annex Building

Harrisburg, Pa.

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