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LEMON v. KURTZMAN

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


November 28, 1969

ALTON J. LEMON, PRISCILLA REARDON, BETTY J. WORRELL, and PENNSYLVANIA STATE EDUCATION ASSOCIATION, PENNSYLVANIA CONFERENCE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, PENNSYLVANIA COUNCIL OF CHURCHES, PENNSYLVANIA JEWISH COMMUNITY RELATIONS CONFERENCE, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA, INC.
v.
DAVID H. KURTZMAN, as Superintendent of Public Instruction of the Commonwealth of Pennsylvania, GRACE SLOAN, as State Treasurer of the Commonwealth of Pennsylvania, ST. ANTHONY'S ROMAN CATHOLIC CHURCH SCHOOL, ARCHBISHOP WOODS GIRLS HIGH SCHOOL, UKRAINIAN CATHOLIC SCHOOL, GERMANTOWN LUTHERAN ACADEMY, AKIBA HEBREW ACADEMY, PHILADELPHIA MONTGOMERY CHRISTIAN ACADEMY, and BETH JACOBS SCHOOLS OF PHILADELPHIA

The opinion of the court was delivered by: LUONGO; TROUTMAN

OPINION AND ORDER

ALFRED L. LUONGO, UNITED STATES DISTRICT JUDGE

E. MAC TROUTMAN, UNITED STATES DISTRICT JUDGE

 The present suit seeks to enjoin the alleged unconstitutional approval and expenditure of State funds under the Pennsylvania Nonpublic Elementary and Secondary Education Act *fn1" (hereinafter the Education Act). Since the complaint alleges the unconstitutionality of a statute of state-wide application, this three-judge panel has been convened. 28 U.S.C. §§ 2281-84. *fn2"

 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 Commonwealth of Pennsylvania which "share as a common objective the separation of Church and State and the opposition to the use of public funds for the support in whole or in part of sectarian schools, or other private schools whose policies and practices, by purpose or effect, exclude or otherwise discriminate against persons by reason of race or religion." *fn3" The National Association for the Advancement of Colored People, (NAACP) with which the plaintiff, Pennsylvania State Conference of the NAACP, is affiliated, "is an organization whose purpose is to seek the elimination of racial discrimination through resort to judicial proceedings and otherwise". *fn4" Each of the organizational plaintiffs asserts its standing to sue as a party-plaintiff in the instant suit.

 The defendant Kurtzman is the Pennsylvania Superintendent of Public Instruction who is responsible for approving 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 institutions situated within the Eastern District of Pennsylvania, who have contracted with the Commonwealth for the purchase of secular educational services under the Education Act. *fn5"

 I.

 The Nonpublic Elementary and Secondary Education Act.

 The Education Act was signed into law by the Governor of Pennsylvania on June 19, 1968. The Act empowers 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 attendance requirements under Pennsylvania law.

 In its legislative findings an declaration of policy *fn6" the Pennsylvania Legislature has determined that a a crisis exists in elementary and secondary education in Pennsylvania due to rapid increases in costs and school population 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 constitutes a public welfare purpose and that nonpublic education, by providing instruction in secular subjects, contributes significantly to the achievement of this public purpose. The Legislature, therefore, concluded 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 contracts *fn7" with nonpublic schools, whether sectarian or nonsectarian, for the purchase of "secular educational services". These "secular educational services" are defined *fn8" 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". All purchases of secular educational services under the Education Act are to be at the "actual cost" of three items of such service: teacher salaries, textbooks and instructional materials. The Education Act further limits all purchases of secular educational services to courses in mathematics, modern foreign languages, physical science, and physical education. *fn9" As a condition for payment under the Act, the Superintendent of Public Instruction must approve all textbooks and instructional materials employed in the instruction rendered. In addition, a satisfactory level of student performance in standardized tests must have been attained and within five years of the date of the Act all secular educational services for which reimbursement is sought must be rendered by teachers holding State certification equal to the standard for teachers in public schools. *fn10"

 Payment under the Act in discharge of the contractual obligation may be made only after service has been rendered. Section 5607 (a) provides in relevant part that:

 

Any nonpublic school seeking such reimbursement shall maintain such accounting procedures, including maintenance of separate funds and accounts pertaining to the cost of secular educational service, as to establish that it actually expended in support of such service an amount of money equal to the amount of money sought in reimbursement. Such account shall be subject to audit by the Auditor General.

 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. *fn11"

 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.

 II

 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. *fn12"

  A. Organizational Plaintiffs

 The organizational plaintiffs assert their standing solely on the ground that they are organizations established for the purpose 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, 392 U.S. 83, 99, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (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 complaint 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 adverse to the respective general purposes of these organizations we believe is insufficient to establish standing to sue as an affected party in interest. *fn13" Consequently, the organizational 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 Reardon and Betty J. Worrell, assert standing under the religious clauses of the First Amendment and the equal protection clause based upon varied allegations of status as to each issue.

 Initially, it is alleged that all individual plaintiffs are taxpayers of the Commonwealth of Pennsylvania. Plaintiff Lemon alleges he has paid an admission fee to a Pennsylvania race track. Such fees provide the sole financing of the Education Act. The other individual plaintiffs have not alleged payment of such admission fees.

 As to plaintiff Lemon's standing as a taxpayer under 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 appropriate and necessary to look to the substantive issues . . . 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 concerned itself with the status of a federal taxpayer to challenge a federal spending program under the establishment and free exercise clauses of the First Amendment, we consider that its requirements as to standing apply as well to state taxpayers. Flast dictates two requirements for taxpayers standing, namely that: "First the taxpayer must establish a logical nexus between that status and the type of legislative enactment attacked" 392 U.S. at 102, and "Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged". 392 U.S. at 102. In Flast, both elements were satisfied since it was alleged that the taxing and spending powers of the federal government were being used in excess of the specific constitutional limitations imposed upon their exercise by the First Amendment. See 392 U.S. at 103. Since the First Amendment applies to State governmental powers, Cantwell v. Connecticut, 310 U.S. 296, 84 L. Ed. 1213, 60 S. Ct. 900 (1940), the exercise of State taxing and spending is equally limited. These are precisely the allegations made by plaintiff Lemon in the instant case. We, therefore, hold 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, 96 L. Ed. 475, 72 S. Ct. 394 (1952); Murdock v. Pennsylvania, 319 U.S. 105, 87 L. Ed. 1292, 63 S. Ct. 870 (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, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963); Torcaso v. Watkins, 367 U.S. 488, 81 S. Ct. 1680, 6 L. Ed. 2d 982 (1961). Although 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 complaint that the private schools which have contracted or will contract with the Commonwealth under the Education Act 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 Commonwealth to these schools under the Act will be used to perpetuate and support these practices and as such there is State action involved. We will assume for the purpose of deciding 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 Amendment.

 The Education Act on its face does not use religion or race as a standard or guideline to determine who may enter into a purport to make any classifications to deny equal treatment to members of any particular race or religion. 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 personally 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 affected has the net effect of seeking to raise hypothetical grievance 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, 91 L. Ed. 754, 67 S. Ct. 556 (1947). Race is indeed a relevant consideration to equal protection issues. However, our research does not disclose any case in which a person was permitted to challenge discriminatory practices, policies or laws where he himself was not the object of such practice. *fn14" Consequently, as none of the individual plaintiffs have alleged a personal stake in the instant case, they have failed to establish standing under the equal protection clause.

 III.

 Establishment and Free Exercise

 We consider now the defendants' motions to dismiss the plaintiffs' complaint for failure to state a claim upon 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 of the Education Act is to aid religion. For the purpose of considering the motion to dismiss it is argued that the allegation of the purpose and primary effect of the Education Act in the complaint must be deemed admitted. While it is true that well-pleaded facts in the complaint are deemed admitted for the purpose of testing its sufficiency, such an admission does not include legal conclusions drawn from these facts. Newport News Co. v. Schauffler, 303 U.S. 54, 57, 82 L. Ed. 646, 58 S. Ct. 466 (1937); Pauling v. McElroy, 107 U.S. App. D.C. 372, 278 F.2d 252, 253-254 (D.C. Cir. 1960). We believe that the allegation asserts not a fact but a conclusion of law and as such is not admitted for purposes of testing the sufficiency of the complaint. The question of law then presented is whether the purpose or primary effect of the Pennsylvania Education Act on its face or in the necessary effect of its administration is to advance or inhibit religion. *fn15"

 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 restriction 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, 84 L. Ed. 1213, 60 S. Ct. 900 (1940). The meaning and scope of the First Amendment have been elaborated several time by the decisions of the United States Supreme Court in areas involving education. Most apposite to the instant case are the Supreme Court's decisions in Everson v. Board of Education, 330 U.S. 1, 91 L. Ed. 711, 67 S. Ct. 504 (1947) and Board of Education v. Allen, 392 U.S. 236, 88 S. Ct. 1923, 20 L. Ed. 2d 1060 (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 Amendment. The Court noted that the establishment clause prohibits 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 to parochial schools such as ordinary police and fire protection, sewage disposal, public highways and sidewalks, this measure of aid, as it benefited school children, could be constitutionally extended without breaching the standard of government neutrality toward religion embodied in the First Amendment.

 Most recently, in Board of Education v. Allen, 392 U.S. 236, 20 L. Ed. 2d 1060, 88 S. Ct. 1923 (1968) the Court sustained, over First Amendment objections, legislation in New York which required the State to lend textbooks free of charge to all children in private sectarian and non-sectarian schools. The Court recognized that "Everson and later cases have shown that the line between State neutrality to religion and State support of religion is not easy to locate. 'The constitutional standard is the separation of Church and State. The problem, like many problems in constitutional law, is one of degree'. Zorach v. Clauson, 343 U.S. 306, 314, 96 L. Ed. 954, 72 S. Ct. 679 (1952). See McGowan v. Maryland, 366 U.S. 420, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961)". Id. The Court re-examined its prior decision and articulated a pragmatic standard, first espoused in Abington School District v. Schempp, 374 U.S. 203, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1963), by which to test legislation designed to achieve a public objective through religiously affiliated educational institutions. To distinguish between "forbidden involvement of the State with religion and those contacts which the Establishment Clause permits " the Supreme Court stated:

 

The test may be stated as follows: what are the purpose 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 circumscribed 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 primary effect that neither advances nor inhibits religion. 374 U.S. at 222.

 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 instruction was facilitated and that the parochial schools' funds were not 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 available to the young. . . . The law merely makes available 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 authorized nor permitted loans or distributions of religious literature. 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 fact. The Legislature has declared that the purpose of the Education Act is "to promote 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 children educated in Pennsylvania's private institutions, the rising cost of education, increased school population and demands for more qualified teachers and adequate facilities. Furthermore, the Legislature also recognized the 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 burdens. 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 must 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. at 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 Pennsylvania legislators was to aid religion. We do not, however, 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 legislators. The legislative findings of the State are not to be lightly set aside. In this connection, Mr. Justice Frankfurter has observed that:

 

The 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 judiciary 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, 49 L. Ed. 78, 24 S. Ct. 769. "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, 74 L. Ed. 913, 50 S. Ct. 335 (1930). It is neither necessary nor constitutionally permissible 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, 69 L. Ed. 1070, 45 S. Ct. 571 (1925). As a sensible corollary to the Pierce decision and considering the State's interest in satisfying its compulsory education laws through private educational institutions, the Allen Court observed:

 

If the State must satisfy its interest in secular education 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.S. at 247, and that the public's reliance on private education suggests 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 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 interest of education within proper confines and without participating 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, *fn16" physical sciences, *fn17" modern foreign language, *fn18" and physical education. *fn19" That the Commonwealth 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 thereunder. 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 religious or that the processes of secular and religious training are so intertwined that secular textbooks furnished to students by the public are in fact instrumental in the teaching 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 building, facilities and teachers are used as a forum and means for the dissemination 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, 92 L. Ed. 649, 68 S. Ct. 461 (1948); Abington School District v. Schempp, 374 U.S. 203, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1963); Engel v. Vitale, 370 U.S. 421, 8 L. Ed. 2d 601, 82 S. Ct. 1261 (1962). On the contrary, the statute is limited not only to secular subjects but to a limited number of specific secular 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, 96 L. Ed. 954, 72 S. Ct. 679, the Court approved the State's encouragement of "religious instruction" and its cooperation "with religious authorities". *fn20" 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 society, 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, its concerns and the concerns of religion 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 many they may concur or they may conflict. No constitutional command which leaves religion free can avoid this quality of interplay. McGowan v. Maryland, 366 U.S. 420, 462, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1966). (Separate opinions of Mr. Justice Frankfurter).

 That such a common interest in education exists is desirable 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 sectarian matters. We do not view the First Amendment as requiring an absolute separation between necessarily overlapping 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 interest 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 improvement of the secular education the child receives regardless 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 depend upon the identity of the payee. The use to which the funds are put must be the primary concern. *fn21"

 The mandate of the First Amendment is neutrality with respect to religious teachings, beliefs and practices. 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 First Amendment. While it may be argued that the consequential result of the instant statute may be to indirectly benefit nonpublic sectarian schools, the purpose and primary effect of the Education act is secular in nature and such an incidental 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 Education v. Allen, supra:

 

Where the contested governmental activity is calculated 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. However, we believe the Education Act is consistent with neutrality towards religion and comes within the permissible limits and spirit of the non-establishment principle. Consequently, we will dismiss the plaintiffs' complaint under the establishment clause.

 Plaintiffs also allege in their complaint that the Education Act on its fact and in its necessary operative effect denies them the free exercise of religion. With respect to each of the plaintiffs, it is alleged that "it is against the religious conscience of each of the plaintiffs to be forced by operation of that taxing power into contributing to the propagation of religion or for the support of sectarian schools". It is also alleged that the Act "constitutes compulsory taxation for the support of religion or religious educational institutions."

 With respect to the latter allegation, as we have decided that the Education Act in purpose and primary effect does not advance or support religion, such taxation, assuming arguendo that it is compulsory, is not for the support of religion. Consequently, this allegation must fall. With respect to the former allegation, it is the purpose of the free exercise clause of the First Amendment "to secure religious 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, 10 L. Ed. 2d 844, 83 S. Ct. 1560 . . . and appellant 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 plaintiff have failed to state a claim under the free-exercise clause of the First Amendment and, therefore, their complaint will be dismissed. In view of our disposition of defendants' motions to dismiss, we need not consider the remaining motions.

 ORDER - November 28, 1969, Filed

 AND NOW, this 28th day of November, 1969, IT IS ORDERED 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 DENIED.

 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 clause is GRANTED.

 4. Defendants' motion to dismiss the complaint as to individual plaintiffs Reardon and Worrell for lack of standing under the free-exercise clause is DENIED.

 5. Defendants' motion to dismiss the complaint as to all individual plaintiffs for lack of standing under the equal protection clause is GRANTED.

 6. Defendants' motion to dismiss the complaint for failure of all plaintiffs to state a claim upon which relief can be granted is GRANTED.


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