Appeal from the Order of the Secretary of Education in case of In Re: Application of The First School under Act 109 of 1968, dated November 15, 1974.
William B. Ball, with him Ball & Skelly, for appellant.
J. Justin Blewitt, Jr., Deputy Attorney General, with him Lawrence Silver, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt. Dissenting Opinion by Judge Rogers. Judge Wilkinson joins in this dissent.
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This is an action in which The First School tests the viability of a statute held to be at least in part unconstitutional by the United States Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971) (Lemon I).
The statute in question is the Nonpublic Elementary and Secondary Education Act*fn1 (Act 109) which authorizes the Commonwealth to reimburse nonpublic schools for their actual expenditures for teachers' salaries, textbooks, and other instructional materials. In Lemon I the court reviewed Act 109 and a similar statute of Rhode Island and held "that both statutes are unconstitutional" because "the cumulative impact of the entire relationship [between secular and religious educational functions] arising under the statutes in each state involves excessive entanglement between government and religion." Lemon I at 607 and 614. The court, however, remanded the case to the United States District Court for the Eastern District of Pennsylvania for further proceedings consistent with the opinion, and, upon remand, the District Court carefully drafted an order proscribing payments
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"to any school which is church related, controlled by a religious organization or organizations, or has the purpose of propagating and promoting a particular religious faith and conducts its operations to fulfill the purpose." Lemon v. Kurtzman, 348 F. Supp. 300, 301 n. 1 (E.D. Pa. 1972).
The Supreme Court affirmed this limited order in Lemon v. Kurtzman, 411 U.S. 192 (1973) (Lemon II).*fn2
The First School contends that the ruling by the District Court and approved by the Supreme Court in Lemon II indicates that Act 109 has been declared unconstitutional only insofar as it may have applied to sectarian schools. The First School, therefore, being a nonpublic and nonsectarian school, has applied for funding pursuant to the Act. The Department of Education (Department), however, maintains that Act 109 is unconstitutional in its entirety and has consequently refused The First School's application for funding. This appeal by The First School followed.
A careful reading of the Supreme Court's opinion in Lemon I and of its subsequent opinion in Lemon II fails to provide any definitive indication as to whether or not the court considered the continuing viability of Act 109 as it pertains to nonpublic, nonsectarian schools. In both cases the court stressed its concern, however, about the potential excessive entanglement between government and religion that attends such statutes as Act 109. The District Court, therefore, when acting under the order remanding this case to it, proscribed payments to non-public sectarian schools only, and it appears that the Act 109 funding provisions were considered by that court to have continuing validity as to nonsectarian schools. We
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believe, too, as the District Court evidently did, that there was no intent by the Supreme Court to rule Act 109 unconstitutional as applicable to situations where the prohibited church-state entanglement was not involved. What we must determine, however, is whether or not Act 109 is reasonably ...