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COMMONWEALTH PENNSYLVANIA v. FIRST SCHOOL (02/28/77)

decided: February 28, 1977.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF EDUCATION, APPELLANT,
v.
THE FIRST SCHOOL



COUNSEL

J. Justin Blewitt, Jr., Deputy Atty. Gen., Harrisburg, for appellant.

William B. Ball, Harrisburg, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix, and Manderino, JJ. Eagen, J., dissents.

Author: Roberts

[ 471 Pa. Page 473]

OPINION OF THE COURT

This is an appeal*fn1 from a decision of the Commonwealth Court which held that the Nonpublic Elementary and Secondary Education Act ("Act 109")*fn2 is constitutional and enforceable as applied to nonsectarian nonpublic schools.*fn3 Appellant, the Commonwealth Department of Education ("Department"), contends that Act 109 was declared unconstitutional in its entirety in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), and thus cannot be enforced even as to nonsectarian schools. The Department also argues that even if

[ 471 Pa. Page 474]

Act 109 was not held unconstitutional in its entirety, its provisions are not severable. The Department further asserts that Act 109 has been impliedly repealed by subsequent legislation. Finally, the Department maintains that Act 109, as construed by the Commonwealth Court, cannot be constitutionally administered.

We reject the Department's contentions. We hold that Act 109 is constitutional and enforceable as applied to nonsectarian nonpublic schools and accordingly affirm the Commonwealth Court order.

On July 25, 1974, appellee, the First School, a nonsectarian nonpublic school, filed "An Application for Nonpublic School Aid" pursuant to Act 109. The Department denied the First School's application because it considered Act 109 to be invalid in its entirety in light of Lemon v. Kurtzman, supra. After the Secretary of Education affirmed the Department's denial of aid, the First School appealed to the Commonwealth Court, which held that Act 109 was valid as applied to nonsectarian nonpublic schools and ordered the Department to process the First School's application.

I

The Department contends that the United States Supreme Court held Act 109 unconstitutional in its entirety in Lemon v. Kurtzman, supra.*fn4 To evaluate this

[ 471 Pa. Page 475]

    contention, it is first necessary to review the procedural history of Lemon. Plaintiffs brought suit in federal district court to enjoin the allegedly unconstitutional approval and expenditure of public funds to sectarian nonpublic schools under Act 109. The three-judge district court*fn5 held that Act 109 violated neither the establishment nor free exercise clauses of the first amendment and granted a motion to dismiss the complaint. Lemon v. Kurtzman, 310 F.Supp. 35 (E.D.Pa.1969). On appeal, the United States Supreme Court held that Act 109, which authorizes direct reimbursement to sectarian and nonsectarian nonpublic schools for actual expenditures for teachers' salaries, textbooks and instructional materials, fostered excessive entanglement between government and religion in violation of the establishment clause of the first amendment. Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (Lemon I). The Court reversed the district court order dismissing the complaint, and remanded the case for further proceedings consistent with its opinion.

On remand, the district court entered summary judgment for plaintiffs and restrained payments to sectarian nonpublic schools for services performed or costs incurred subsequent to June 28, 1971, the date Lemon I was filed. The district court, however, upheld payments to sectarian nonpublic schools for services performed or costs incurred prior to June 28, 1971.*fn6 The United

[ 471 Pa. Page 476]

States Supreme Court affirmed this order in Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973) (Lemon II).

A careful analysis of Lemon I reveals that the Supreme Court found Act 109 unconstitutional because it fostered an excessive entanglement between government and religion in violation of the establishment clause of the first amendment. Specifically, the Court held that the constitutional infirmity arose from (1) the restriction and surveillance necessary to ensure that teachers in sectarian nonpublic schools play a strictly nonideological role;*fn7 (2) the state supervision of sectarian nonpublic school accounting procedures required to distinguish secular from religious education;*fn8 and (3) the continuous financial aid given directly to sectarian nonpublic schools for teachers' salaries, textbooks and instructional materials.*fn9 Additionally, the Court cited the danger of entanglement which could result from the diversive political potential of Act 109, noting that "political division along religious lines was one of the principal evils against which the First Amendment was intended to protect."*fn10

The constitutional infirmities of Act 109 stem from the entanglement between the state and sectarian nonpublic schools. The Supreme Court did not address itself to the validity of Act 109 as applied to nonsectarian nonpublic schools in Lemon I. It is clear that the constitutional principles which proscribe public aid as authorized under Act 109 to sectarian nonpublic schools have no bearing on public aid to nonsectarian nonpublic schools.

Moreover, the district court order, which was affirmed by the Supreme Court in Lemon II, only enjoined reimbursements

[ 471 Pa. Page 477]

    to sectarian nonpublic schools. The court order prohibited payments

". . . 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 that purpose."

Lemon v. Kurtzman, 348 F.Supp. 300, 300 n. 1 (E.D.Pa. 1972). If, as the Department contends, the entire Act was held unconstitutional, the district court would have proscribed payments to both sectarian and nonsectarian schools.

We conclude that the Supreme Court held Act 109 unconstitutional only as applied to sectarian nonpublic schools.*fn11 Thus, the validity of Act 109 as applied to nonsectarian nonpublic schools was not resolved by Lemon I or Lemon II.

II

The Department contends that Act 109 is not severable because it cannot achieve its legislative purpose if applied only to nonsectarian nonpublic schools. We do not agree and hold that Act 109 is severable and can be completely effectuated as applied to nonsectarian nonpublic schools.

[ 471 Pa. Page 478]

The public policy of this Commonwealth favors severability. Section 1925 of the Statutory ...


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