No. 385 January Term, 1978, Appeal from the order of the Commonwealth Court of Pennsylvania of April 21, 1978, No. 1586 C.D. 1976. No. 101 March Term, 1978, Appeal from the order of the Commonwealth Court of Pennsylvania filed February 10, 1978, No. 1603 C.D. 1976. No. 393 January Term, 1978, Appeal from the order of the Commonwealth Court, No. 1610 C.D. 1976, Affirming the Order of the Secretary of Education.
Robert J. Stefanko, Sol., Persifor S. Oliver, Jr., Asst. Sol., Pittsburgh, for appellants.
Patricia A. Donovan, William B. Ball, Joseph G. Skelly, Philip J. Murren, Ball & Skelly, Harrisburg, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. O'Brien, J., and Pomeroy, former J., did not participate in the decision of these cases. Roberts, J., filed a dissenting opinion in which Larsen, J., joined.
Appellant school districts are appealing from separate orders of the Commonwealth Court affirming decisions by the Secretary of Education finding the districts to be in violation of the Act of December 29, 1972, P.L. 1726, No. 372, amending § 1361 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, Art. XIII, as amended, 24 P.S. § 13-1361 (1978-79 Supp.) (Act 372). For the following reasons we now affirm the orders of the Commonwealth Court.
Act 372 authorizes local school districts to provide for the free transportation of pupils to public and nonpublic schools. It states in pertinent part:
The board of school directors in any school district may . . . provide for the free transportation of any resident pupil to and from the kindergarten, elementary school, or secondary school in which he is lawfully enrolled, provided that such school is not operated for profit and is located within the district boundaries or outside the district boundaries at a distance not exceeding ten miles by the nearest public highway, except that such ten-mile limit shall not apply to area vocational technical schools which regularly serve eligible district pupils or to special
schools and classes approved by the Department of Education, . . . When provision is made by a board of school directors for the transportation of public school pupils to and from such schools . . . the board of school directors shall also make identical provision for the free transportation of pupils who regularly attend nonpublic kindergarten, elementary and high schools not operated for profit to and from such schools . . . . Such transportation of pupils attending nonpublic schools shall be provided during regular school hours on such dates and periods that the nonpublic school not operated for profit is in regular session, according to the school calendar officially adopted by the directors of the same in accordance with provisions of law.
There are 505 school districts in Pennsylvania. Appellants are three of the five districts that have failed to comply with Act 372.*fn1 Pittsburgh and Pequea Valley have refused to transport nonpublic school students beyond the district boundaries. Springfield transports nonpublic school students beyond its district lines only to a distance of the three and one-quarter miles, which is approximately equal to the distance public school students are transported within the district's boundaries. On different dates in 1974, the Secretary of Education issued show cause orders to these three school districts requiring them to give reasons why funds due them on account of reimbursable pupil transportation expenses should not be withheld because of their failure to comply with Act 372. Following separate hearings, the Secretary of Education issued final orders in August and September, 1976, directing the school districts to transport all eligible nonpublic school children beyond the school district boundaries in accordance with the ten-mile maximum set forth in Act 372. The Secretary further directed that all transportation reimbursement funds paid by the Commonwealth to the school districts be withheld until there was compliance with the Act.
On February 10, 1978, the Commonwealth Court affirmed in part the final order of the Secretary of Education regarding the Pittsburgh School District. School District of Pittsburgh v. Commonwealth of Pennsylvania, Department of Education, 33 Pa. Commw. 535, 382 A.2d 772 (1978). The court affirmed that portion of the order requiring the transportation of eligible pupils beyond the district's boundaries, but vacated the portion of the order pertaining to the withholding of the reimbursement subsidy.*fn2 On the strength of that opinion, the Commonwealth Court similarly affirmed in part the orders by the Secretary of Education regarding Springfield and Pequea on April 21 and July 5, 1978, respectively. Springfield School District v. Commonwealth of Pennsylvania, Department of Education, 35 Pa. Commw. 71, 384 A.2d 1049 (1978); Pequea Valley School District v. Commonwealth of Pennsylvania, Department of Education, 36 Pa. Commw. 403, 387 A.2d 1022 (1978).
We took jurisdiction of the school districts' appeals pursuant to 42 Pa.C.S. § 724(a) (1978) and scheduled joint arguments. Appellants challenged the constitutionality of Act 372 under the first and fourteenth amendments to the federal constitution and under three provisions of our state constitution.
The Applicability of the Establishment Clause
The school districts claim that Act 372 is unconstitutional under the establishment clause of the first amendment to the federal constitution because the Act is a "law respecting the establishment of religion." U.S.Const. amend. I. This clause was made applicable to the states in Cantwell v. Connecticut, 310 U.S. 296, 303-05, 60 S.Ct. 900, 903-04, 84 L.Ed. 1213, 1217-18 (1940).
The United States Supreme Court has developed a three-part test to determine whether a particular state law violates the establishment clause. To pass constitutional muster, the statute under scrutiny must 1) reflect a clearly secular legislative purpose; 2) have a primary effect that neither advances nor inhibits religion; and 3) avoid excessive government entanglement with religion. Meek v. Pittenger, 421 U.S. 349, 358, 95 S.Ct. 1753, 1760, 44 L.Ed.2d 217, 227-28 (1975), and cases cited therein. All three of the test's requirements must be met before the act in question will be permitted to stand. Despite the seeming clarity of this test, commentators and members of the Supreme Court itself have alluded to the difficulties encountered in its application. Prof. Henry J. Abraham had occasion to refer to
Justice Powell stated in Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 760, 93 S.Ct. 2955, 2959, 37 L.Ed.2d 948 (1973), that the cases arising under the establishment clause "have presented some of the most perplexing questions to come before this Court." Speaking for the Court in Walz v. Tax Commission of City of New York, 397 U.S. 664, 669, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697, 701-02 (1970), Chief Justice Burger observed:
The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of [the religion clauses], which is to insure that no religion be sponsored or favored, none commanded, and none inhibited.
The Court in Meek assessed the strengths and weaknesses of the test as follows:
These tests constitute a convenient, accurate distillation of this Court's efforts over the past decades to evaluate a
wide range of governmental action challenged as violative of the constitutional prohibition against laws "respecting an establishment of religion," and thus provide the proper framework of analysis for the issues presented in the case before us. It is well to emphasize, however, that the tests must not be viewed as setting the precise limits to the necessary constitutional inquiry, but serve only as guidelines with which to identify instances in which the objectives of the Establishment Clause have been impaired. Meek v. Pittenger, supra, 421 U.S. at 358-59, 95 S.Ct. at 1760 (citations omitted).
Before we proceed to analyze the instant statute in light of this test it is helpful to set forth the various objectives to which the establishment clause is addressed. In the first "modern" case involving the establishment clause, Everson v. Board of Education of Township of Ewing, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947),*fn3 Justice Black, writing for the five man majority, reviewed the history leading up to the adoption of the establishment clause and then set forth the following view as to its objective:
The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. . . . No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State." 330 U.S. at 15-16, 67 S.Ct. at 511-512.
This "wall of separation" requires that governmental action must be neutral in its effect upon religion and religious
institutions. Thus in writing for the eight man majority in Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), Justice Clark explained:
The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the state is firmly committed to a position of neutrality. Id., 374 U.S. at 226, 83 S.Ct. at 1574.
This view was echoed by Chief Justice Burger in Walz v. Tax Commission of City of New York, supra. There he wrote:
The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference. 397 U.S. at 669, 90 S.Ct. at 1411-1412.
This concept of "benevolent neutrality" reflects a realization that the "wall of separation" does not require a degree of governmental detachment whereby the state becomes the adversary of religion or insensitive to its needs. As noted in Walz
Separation in this context cannot mean absence of all contact; the complexities of modern life inevitably produce some contact and the fire and police protection received by houses of religious worship are no more than incidental benefits accorded all persons or institutions within a State's boundaries, along with many other exempt organizations. Id. at 676, 90 S.Ct. at 1415.
Thus governmental action is not necessarily proscribed because it results in a benefit to a religious institution, provided the benefit is indirect and incidental. E. g., Everson v. Board of Education, supra. Moreover, the determination as to whether a benefit is indirect and incidental is principally a question of degree.
Primary among the evils against which the Establishment Clause protects "have been 'sponsorship, financial support, and active involvement of the sovereign in religious activity.' Walz v. Tax Comm'n, supra, 397 U.S. at 668, [90 S.Ct. 1409;] Lemon v. Kurtzman, supra, 403 U.S. at 612", [91 S.Ct. 2105.] Committee for Public Education & Religious Liberty v. Nyquist, supra, 413 U.S. at 772, [93 S.Ct. at 2965.] The Court has broadly stated that "[n]o tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they adopt to teach or practice religion." Everson v. Board of Education, 330 U.S. 1, 16, [67 S.Ct. 504, 511, 91 L.Ed. 711.] But it is clear that not all legislative programs that provide indirect or incidental benefit to a religious institution are prohibited by the Constitution. See Zorach v. Clauson, 343 U.S. 306, 312, [72 S.Ct. 679, 683, 96 L.Ed. 954;] Lemon v. Kurtzman, supra, 403 U.S. at 614, [91 S.Ct. at 2112.] "The problem, like many problems in constitutional law, is one of degree." Zorach v. Clauson, supra, 343 U.S. at 314, [72 S.Ct. at 684.] Meek v. Pittenger, supra, 421 U.S. at 359, 95 S.Ct. at 1760.
Proceeding from these basic principles we must examine the instant legislation in light of the three prong test that has been provided. Our first consideration is whether the statute possesses a clearly secular legislative purpose. Act 372 was the product of legislative concern for the welfare of school children travelling between home and school. Protecting the child against the hazards of traffic, the exposure to inclement weather and the designs of persons who would harm them are well recognized secular governmental interests.
Providing bus transportation is obviously an appropriate means to accomplish these purposes. This Court has previously expressed the view that a legislative enactment providing for bus transportation for school children was a legitimate legislative action to respond to a real danger. Rhoades v. Abington Township School Dist., 424 Pa. 202, 226 A.2d 53, cert. denied, 389 U.S. 846, 88 S.Ct. 36, 19 L.Ed.2d 114, appeal dismissed, 389 U.S. 11, 88 S.Ct. 61, 19 L.Ed.2d 7 (1967).
In view of the peril hovering over our streets and roads like a miasmatic fog, those charged with concern for the safety of children are duty bound to devise methods and means for saving the little travelers from harm on their way to and from school. Obviously the manner in which to provide these youthful wayfarers with a fair measure of protection against highway mishap is to keep them pedally off the roads and to transport them in vehicles so formidably constructed that they may ward off and parry, to the maximum extent possible, aggression from other vehicles. The school bus with its large heavy wheels and steel fabricated body seems to be the answer to the worrisome problem. Pennsylvania Secretary of Public Welfare, in testifying on House Bill 381 (later to become Act 91) before the Senate Education Committee, said: ". . . school bus transportation clearly involves the safety and health of our children. The busing of school children is for their ...