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ACLU v. ALBERT GALLATIN AREA SCH. DIST.

December 19, 1969

AMERICAN CIVIL LIBERTIES UNION, a New York nonprofit membership corporation; American Humanist Association, a corporation organized under the laws of the State of California; American Jewish Congress, a New York membership corporation; Greater Pittsburgh Council of Unitarian-Universalist Churches, an unincorporated association; Reverend Edward A. Cahill, Reverend Peter Ainslie, Reverend Richard P. Ridenour, Edwin J. Mangold, individually and as parent and natural guardian of James A. Mangold and Leonard Mangold, Reverend Alexander Seabrook, and Reverend Walter E. Wiest, Plaintiffs,
v.
The ALBERT GALLATIN AREA SCHOOL DISTRICT, Fayette County, Pennsylvania, c/o Carmine Molinaro, Esq., Solicitor, 311 Second National Bank Building, Connellsville, Pennsylvania 15425, c/o Ruby Provane, Secretary, Fairchance-Georges Junior-Senior High School, R.D. #2, Uniontown, Pennsylvania 15401, Defendants



The opinion of the court was delivered by: ROSENBERG

 This matter is here on a complaint seeking injunctive relief to enjoin the Albert Gallatin Area School District from conducting or observing religious programs in its schools.

 The defendant filed an answer to the complaint in which it denied that the opening exercises conducted throughout the schools in the defendant school district constituted the establishment of a religious ceremony or exercise within the prohibitions of the First and Fourteenth Amendments. In addition the Albert Gallatin Tax Protest Committee intervened as a party defendant under Rule 24 of the Federal Rules of Civil Procedure.

 A hearing was thereafter held and both sides presented evidence. The parties agreed that the hearing be final and that a final determination be made in the case.

 From all of the evidence produced by the parties I find the facts as follows: the defendant, Albert Gallatin Area School System is a joint school established by agreement between the former Fairchance-Georges School District, the former German Township School District and the former Albert Gallatin School District as authorized by the Pennsylvania Legislature in § 1701 of the Act of March 10, 1949, P.L. 39 (24 P.S. § 17-1701) for the purpose of establishing, operating, and administering certain public schools; the School District is a joint school district encompassing Georges, German, Springhill and Nicholson Townships, and the Boroughs of Point Marion, Masontown, Fairchance and Smithfield; the School District contains 6 Elementary schools, 4 Junior High schools, and 3 Senior High schools; the school district is a political subdivision of the Commonwealth of Pennsylvania; the school district is governed by elected school officials pursuant to the laws of the Commonwealth of Pennsylvania; at the meeting of the Board of Education of the Albert Gallatin School District on March 17, 1969, "A motion was made by Langley, seconded by Boni, that the Albert Gallatin Area School District install Bible reading and some non-denominational mass prayer in the school district"; no formal resolution as such, other than the motion, was adopted and no procedure as such was inaugurated by the school board; thereafter a program was adopted and conducted by teachers, parents and students whereby a student, acting without direction or command would read a passage of his own choosing from his own personal Bible, over the school's public address system; such reading was followed by a recitation of the Lord's Prayer and the Pledge of Allegiance recited in unison; in those schools which were not equipped with a public address system, such programs were conducted in the individual classrooms, at the election of the teacher in charge; no student was compelled to remain within the hearing of any such programs; the plaintiff is Edward J. Mangold whose two sons, James A. Mangold and Leonard Mangold, are students in the school system; the Mangolds are of the Roman Catholic persuasion; Mr. Mangold and his children object to the Lord's Prayer as recited and to the reading of any Biblical passages during school hours; some few others in the school district also object to these exercises, but the number of those objecting is a very small percentage of the entire constituency of the school district which consists of 5,000 to 6,000 students; the vast majority or bulk of the students and their parents, who are of various religious persuasions, desire and encourage such programs as a matter of spiritual or moral stimulation; no definable tax monies are used in the performance of these programs, and the School District and its functions are maintained by the collection of school taxes from property owners in the School District.

 The plaintiff here contends that the action of the School Board in authorizing and sanctioning these programs constitutes a religious establishment in violation of the provisions of the First Amendment which provides that:

 
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; * * *."

 This Amendment has been made applicable to the states through the Fourteenth Amendment, Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940). The plaintiff seeks to have the March 17, 1969 "motion" of the School Board declared unconstitutional, and in support of his position, the plaintiff cites the authority contained in School District of Abington Township, Pa. v. Schempp, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963).

 Because the plaintiffs, American Civil Liberties Union, a New York nonprofit corporation, American Humanist Association, a corporation organized under the laws of the State of California, American Jewish Congress, a New York membership corporation, Greater Pittsburgh Council of Unitarian-Universalist Churches, an unincorporated association, Reverend Edward A. Cahill, Reverend Peter Anislie, Reverend Richard P. Ridenour, Reverend Alexander Seabrook, and Reverend Walter E. Wiest, presented no evidence whatsoever that they were aggrieved parties, their actions were dismissed with the privilege granted to the American Civil Liberties Union, representing it and plaintiff Mangold, to present a brief amicus curiae. That it failed to do.

 I fail to see how a committee or organization from far removed areas such as New York or California, or even local Pittsburgh individuals or groups, whatever their make-up or constituency, can be aggrieved parties on completely local matters concerning a school district in a remote portion of Pennsylvania. Neither am I inclined to allow grievance party status to groups of individuals who professionally seek to inculcate themselves into litigation for the sake of litigation itself, or who seek to induce litigation by persons, remote from them, which litigation is totally unrelated to the personal rights of such individuals.

 That is not to say that there may not be an appropriate time for individuals or groups of individuals to come forward to assist helpless, needy or persecuted individuals who may be in need of counsel for the defense or protection of individual rights. In fact, such actions are often laudable. However, to say that these organizations have standing as taxpayers on the same basis as those they accuse of misapplication of tax funds, because of some ephemeral contention, such as that Commonwealth funds are allocated to the defendant school district, is too remote. "* * * [When] standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable." Flast v. Cohen, 392 U.S. 83, 99, 88 S. Ct. 1942, 1952, 20 L. Ed. 2d 947 (1968). The situation here is in some respect analogous to the situation in Frothingham v. Mellon, 262 U.S. 447, 43 S. Ct. 597, 67 L. Ed. 1078 (1923) where an individual taxpayer brought suit to enjoin the distribution of funds under the provisions of an Act of Congress. The Court, at page 487, 43 S. Ct. at page 601 said that "* * * the relationship of a taxpayer of the United States to the federal government is very different. His interest in the moneys of the treasury - partly realized from taxation and partly from other sources - is shared with millions of others, is comparatively minute and indeterminable, and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity."

 While the rights of Federal Taxpayers to sue as such is governed by the decisions in Frothingham and Flast, the right of resident municipal taxpayers to sue in that capacity has been affirmed by the Supreme Court. Crampton v. Zabriskie, 101 U.S. 601, 25 L. Ed. 1070 (1880); Massachusetts v. Mellon, 262 U.S. 447, 43 S. Ct. 597, 67 L. Ed. 1078 (1923); Flast, supra. From these decisions, the question of standing is to be determined by the proximity or remoteness of the individual or groups bringing suits and the funds involved, that is, "the taxpayer must establish a logical link between that status and the type of legislative enactment involved." Flast, 392 U.S. at 102, 88 S. Ct. at 1954. However, a parent who has a child or children within the municipal school district may be an aggrieved person and thereby acquires the right to raise a legal or constitutional barrier to the expenditure of funds, and allege that such acts infringe upon his constitutional rights. This is the basis upon which the plaintiff Mangold is here a proper party, and this is so in spite of the fact that some evidence indicated that the preparation and presentation of the action was other than his.

 The plaintiff argues that this case is governed by the principles of Abington, supra, in which a challenge was leveled at a statute of the Commonwealth of Pennsylvania, 24 Pa.Stat. Sec. 15-1516, as amended, P.L.1928 (Supp.1960), Dec. 17, 1959, which provided that "at least ten verses from the Holy Bible shall be read without comment, at the opening of each public school on each school day. Any child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian."

 In Abington, the situation arose as a result of the actions of the school authorities in enforcing a statute of the schools of the Commonwealth. In striking down the statute as being unconstitutional, the Supreme Court said " * * * it might well be said that one's education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required ...


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