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NORTHWESTERN SCH. DIST. v. PITTENGER

June 16, 1975

NORTHWESTERN SCHOOL DISTRICT and Willard C. Miller
v.
John C. PITTENGER et al.



The opinion of the court was delivered by: KNOX

 Plaintiffs Northwestern School District and Willard C. Miller brought this civil rights action pursuant to 42 U.S.C. § 1983 claiming that certain provisions of the Public School Code of 1949, as amended, *fn1" which grant sparsity payment subsidies to certain Pennsylvania school districts and not to others based on their low population densities, are in violation of the equal protection clause and due process clause of the Fourteenth Amendment. Subject matter jurisdiction is alleged under 28 U.S.C. § 1343(3) and 28 U.S.C. § 1331.

 Since the plaintiffs seek to have the enforcement of a State statute declared unconstitutional, a statutory three-judge court was convened in accordance with 28 U.S.C. § 2284. *fn2" The defendants, certain state officials whose positions and duties are described hereafter, filed a motion to dismiss, and the court heard argument on this motion as well as on the merits of plaintiffs' claim in Erie on April 22, 1975. As discussed in this opinion, the motion to dismiss will be granted with respect to defendants' assertion that Northwestern School District lacks standing in this case, but will be denied on all other grounds. The court, however, finds in favor of the defendants on the merits. *fn3"

 BACKGROUND

 Northwestern School District is a third-class school district of the Commonwealth of Pennsylvania, located in Erie County. Northwestern was formed by a jointure on July 1, 1956, of the Albion Area School District, which originally was comprised of five school districts, and Springfield Township School District, which originally was comprised of two school districts. While this reorganized school district initially was known as Albion Area -- Springfield Township School District, on July 1, 1959, the district became Northwestern Union School District. Northwestern School District encompasses an estimated area of 119.9 square miles and contains an estimated population of 9,087 persons according to the 1970 United States Census. These figures yield an estimated population of 76 persons per square mile.

 Plaintiff Willard C. Miller resides at R.D. #2, Albion, Pennsylvania and is a taxpayer in Northwestern School District. He presently has two children attending schools in Northwestern School District: Jody Miller, age 17, who is a senior at Northwestern High School and Rebecka Miller, age 13, who is in the seventh grade at Northwestern Junior High School.

 The individual defendants hold the following positions: John C. Pittenger is the Pennsylvania Secretary of Education; John Kosoloski is the Director of the Pennsylvania Bureau of Educational Administration; and Grace Sloan is the State Treasurer. Pittinger and Kosoloski are responsible for enforcing the provisions of the statute in question, and Sloan is responsible for disbursing funds authorized by the statute.

 The legislation challenged by the plaintiffs is 24 P.S. § 25-2501(17). *fn4" The first paragraph of Sec. 25-2501(17) establishes a system of "sparsity payments" to school districts with populations of less than 50 persons per square mile. If a school district qualifies for these payments as a result of its low population density, the district will receive a subsidy from the Commonwealth which is determined in accordance with a formula contained in the statute.

 MOTION TO DISMISS

 The defendants filed a motion to dismiss presenting several claims under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. While the motion will be denied on all grounds except with respect to the claim that Northwestern School District lacks standing in this case, the court will address only the defendants' three most substantial arguments in this opinion.

 The defendants assert that both Northwestern School District and Willard C. Miller lack standing to bring the present action. We agree that the school district lacks standing, but find that the individual plaintiff has standing as a municipal taxpayer and as a parent. Pennsylvania case law is clear that a school district is an agency of the State, created by law for the purpose of promoting education, and has only those powers that are granted by statute. See Chartiers Valley Joint Schools v. County Board of School Directors of Allegheny County, 418 Pa. 520, 211 A.2d 487 (1965); Slippery Rock Area Joint School System v. Franklin Township School District, 389 Pa. 435, 133 A.2d 848 (1957). The Supreme Court has held on several occasions that a municipal corporation created by a State for the better ordering of government has no rights under the United States constitution which it may invoke in opposition to the will of its creator. Williams v. Mayor & City Council of Baltimore, 289 U.S. 36, 53 S. Ct. 431, 77 L. Ed. 1015 (1933); City of Trenton v. New Jersey, 262 U.S. 182, 43 S. Ct. 534, 67 L. Ed. 937 (1923); City of Newark v. New Jersey, 262 U.S. 192, 43 S. Ct. 539, 67 L. Ed. 943 (1923). See also Chester County Institution District v. Comm., 341 Pa. 49, 17 A.2d 212 (1941).

 This rule applying to municipal corporations would appear to apply equally to school districts which in Pennsylvania are in the highest sense creatures of the State. When faced with a similar action by a Nebraska school district to have legislation dealing with state appropriations to school districts declared unconstitutional, a statutory three-judge court held that the Fourteenth Amendment, equal protection clause, has no application to the acts of a State against its own political subdivisions. Triplett v. Tiemann, 302 F. Supp. 1239, 1242 (D.Neb.1969) (per curiam).

 Willard C. Miller does have standing as a municipal taxpayer to raise the equal protection claim. The defendants base their argument that Miller lacks standing as a taxpayer on Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). Flast, however, is not controlling because in that case the Supreme Court dealt only with the issue of standing of a federal taxpayer to challenge the constitutionality of a federal spending program. In the present case, we are dealing with standing of a municipal taxpayer to challenge a state spending program. The Supreme Court has distinguished cases of federal taxpayer standing from those of municipal taxpayer standing. While the interest of a federal taxpayer may be too remote, uncertain, and indirect to justify relief and, therefore, must be measured by the Flast test, a municipal taxpayer is more likely to show a sufficient direct monetary injury to provide a basis for standing. See Doremus v. Board of Education, 342 U.S. 429, 72 S. Ct. 394, 96 L. Ed. 475 (1952); Massachusetts v. Mellon, 262 U.S. 447, 43 S. Ct. 597, 67 L. Ed. 1078 (1923); Crampton v. Zabriskie, 101 U.S. ...


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