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MEEK v. PITTENGER

February 11, 1974

Sylvia MEEK et al., Plaintiffs,
v.
John C. PITTENGER, as Secretary of Education of the Commonwealth of Pennsylvania and Grace M. Sloan, as Treasurer, Defendants, Jose Diaz et al., Intervening Parties Defendants


Gibbons, Circuit Judge. Higgenbotham, District Judge (concurring in part and dissenting in part).


The opinion of the court was delivered by: GIBBONS

In this action the plaintiffs challenge the constitutionality of two Pennsylvania statutes, Act 194, July 12, 1972, Pa. Stat. tit. 24, § 9-972 and Act 195, July 12, 1972, Pa. Stat. tit. 24, § 9-972. Both are claimed to transgress the first amendment in two separate respects, set forth as separate counts in the complaint. The First Count alleges that the statutes violate the establishment clause. The Second Count alleges that the statutes constitute compulsory taxation for the support of religion or religious schools and thereby interfere with the plaintiffs' free exercise of their religion in violation of the free exercise clause. In both counts the complaint seeks an injunction against the expenditure of any funds pursuant to either statute. A three-judge district court was convened pursuant to 28 U.S.C. §§ 2281-2284. The case is before that court on final hearing.

 I. THE PARTIES

 There are three individual and four organizational plaintiffs. The individual plaintiffs are Sylvia Meek, Bertha G. Myers and Charles A. Weatherley, each of whom is a resident taxpayer of the Commonwealth of Pennsylvania. The organizational plaintiffs, American Civil Liberties Union, National Association for the Advancement of Colored People, Pennsylvania Jewish Community Relations Council, and Americans United for Separation of Church and State, each has members who are taxpayers of the Commonwealth.

 The original defendants are John C. Pittinger, Secretary of Education of the Commonwealth and Grace M. Sloan, Treasurer of the Commonwealth.

 A number of parties having varying interests were permitted to intervene as defendants. The individual intervening defendants include parents of children who are receiving benefits under one or both statutes. Of these, the defendants John P. Chesick, Mrs. Robert Boozer, Seth W. Watson, Jr. and Anne P. Watson are parents of beneficiary children who attend nonpublic nonsectarian schools in Pennsylvania. The defendants Jose Diaz, Enilda Diaz, William Zimmerspitz, Nancy Zimmerspitz, Thomas J. Hassall, Marie Hassall, Daniel F. X. Howell and Anna T. Powell are parents of beneficiary children attending nonpublic church-related schools in Pennsylvania. One minor child of two of the intervening defendants is a mentally retarded child attending a church-related school for exceptional children. The defendant Pennsylvania Association of Independent Schools is an organization of nonpublic nonsectarian schools attended by students who qualify as beneficiaries under the challenged acts. The defendant Springside School is a nonpublic nonsectarian school attended by students who qualify as beneficiaries under the challenged statutes.

 II. THE PLEADINGS AND THE RECORD

 Under the Court's supervision the parties engaged in extensive pretrial negotiations which led to the entry of a joint final pretrial order containing twenty-eight stipulations of fact, a list of exhibits which were ultimately received in evidence, and a list of potential witnesses. At a hearing on plaintiffs' motion for a preliminary injunction on September 10, 1973 the testimony of some of these witnesses was received. Pursuant to Rule 65(a) (2) the Court directed that the trial of the action on the merits be advanced and consolidated with the hearing on that application. The plaintiffs were afforded the opportunity to supplement the testimony offered on September 10, 1973, but elected to rest on that record. Thus the case is before us on final hearing on the pleadings, the stipulations set forth in the joint final pretrial order and the evidence received at the hearing on September 10, 1973. This opinion comprises our findings of fact and conclusions of law.

 Acts 194 and 195, both of which became law on July 12, 1972, are amendments to the Pennsylvania Public School Code of 1949, Pa. Stat. tit. 24, §§ 1-101 to 27-2702, which embodies the Commonwealth's comprehensive scheme for educating all children of elementary and secondary school age. The Code defines compulsory school age as not later than eight years and until seventeen years of age. Pa. Stat. tit. 24, § 13-1326. It provides:

 
Every parent, guardian, or other person having control of charge of any child or children of compulsory school age is required to send such child or children to a day school in which the subjects and activities prescribed by the standards of the State Board of Education are taught in the English language. Pa. Stat. tit. 24, § 13-1327.

 The Code recognizes that the requirements of the compulsory attendance law may be met at a nonpublic school so long as the subjects and activities in such school meet the standards of the State Board of Education and are taught in the English language. Id. The only exceptions to compulsory school attendance are those set forth in Pa. Stat. tit. 24, § 13-1330. These include certain children fourteen years of age or older to whom employment certificates have been issued under authority of the Superintendent of Public Education, and children who have been found, after examination, to be so mentally retarded as to be unable to profit from further school attendance. The Commonwealth imposes the requirements of licensing and inspection by a State Board of Private Academic Schools on the nonpublic schools here involved, except for those operated by or under the authority of bona fide religious institutions. Pa. Stat. tit. 24, §§ 2731-43. It imposes on principals and teachers in all schools, public and nonpublic, nonsectarian or religious, the duty of reporting to the district school superintendent the names and addresses of all children enrolled, and any failure of the children to attend school in compliance with the compulsory attendance law. Pa. Stat. tit. 24, § 13-1332. This reporting provision is enforced by a criminal sanction. Pa. Stat. tit. 24, § 13-1355. The Code evidences the strong public policy of the Commonwealth that every child of compulsory school age be educated for functional adult citizenship to the level of minimum state standards. Under various provisions of the Code the Commonwealth has provided to pupils attending public schools, through several levels of state and local officials, certain auxiliary services aimed at the achievement of such a minimum level of educational achievement. To the same end, under other provisions of the Code it furnishes to pupils attending public schools textbooks, instructional materials and instructional equipment.

 Act 194 provides that acting through the same state and local officials as in the case of pupils attending public schools, the Commonwealth will provide auxiliary services

 
. . . to all children who are enrolled in grades kindergarten through twelve in nonpublic schools wherein the requirements of the compulsory attendance provisions of this act may be met and which are located within the area served by the intermediate unit, such auxiliary services to be provided in their respective schools.

 The Intermediate Units referred to are established by another part of the Code. All public school districts in the Commonwealth are assigned to one of twenty-nine such units which have the function of furnishing auxiliary services to such school districts. Pa. Stat. tit. 24, §§ 9-951 to 9-971. These services include but are not limited to curriculum development and instructional improvement services, educational planning services, instructional materials services, continuing professional education services, State and Federal agency liaison services, management services, classes and schools for exceptional children, audiovisual libraries and instructional materials centers. Pa. Stat. tit. 24, § 9-964. The Commonwealth finances these services. Pa. Stat. tit. 24, §§ 9-957, 9-970.

 Act 194, section 1(b), defines auxiliary services as:

 
guidance, counseling and testing services; psychological services; services for exceptional children; remedial and therapeutic services; speech and hearing services; services for the improvement of the educationally disadvantaged (such as, but not limited to, teaching English as a second language), and such other secular, neutral, non-ideological services as are of benefit to nonpublic school children and are presently or hereafter provided for public school children of the Commonwealth.

 All the auxiliary services listed in section 1(b) are presently provided for public school children at public expense either through the Intermediate Units or through local public school districts.

 Act 195, section 1(c) provides:

 
Loan of Textbooks. The Secretary of Education directly, or through the intermediate units, shall have the power and duty to purchase textbooks and, upon individual request, to loan them to all children residing in the Commonwealth who are enrolled in grades kindergarten through twelve of a nonpublic school wherein the requirements of the compulsory attendance provisions of this act may be met. Such textbooks shall be loaned free to such children subject to such rules and regulations as may be prescribed by the Secretary of Education.

 Textbooks are defined in section 1(b):

 
"Textbooks" means books, reusable workbooks, or manuals, whether bound or in looseleaf form, intended for use as a principal source of study material for a given class or group of students, a copy of which is expected to be available for the individual use of each pupil in such class or group. Such textbooks shall be textbooks which are acceptable for use in any public, elementary, or secondary school of the Commonwealth.

 Section 1(d) limits the state's obligation to purchase textbooks for loan to nonpublic school students to a total amount not exceeding ten dollars multiplied by the number of children enrolled in nonpublic schools.

 Act 195, section 1(e) provides:

 
Purchase of Instructional Materials and Equipment. Pursuant to requests from the appropriate nonpublic school official on behalf of nonpublic school pupils, the Secretary of Education shall have the power and duty to purchase directly, or through the intermediate units, or otherwise acquire, and to loan to such nonpublic schools, instructional materials and equipment, useful to the education of such children, the total cost of which, in any school year, shall be an amount equal to but not more than twenty-five dollars ($25) multiplied by the number of children residing in the Commonwealth who on the first day of October of such school year, ...

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