MCKEESPORT AREA SCHOOL DISTRICT v. PENNSYLVANIA DEPARTMENT OF
446 U.S. 970 (1980)

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U.S. Supreme Court

MCKEESPORT AREA SCHOOL DISTRICT v. PENNSYLVANIA DEPARTMENT OF , 446 U.S. 970 (1980)

446 U.S. 970

McKEESPORT AREA SCHOOL DISTRICT
v.
PENNSYLVANIA DEPARTMENT OF EDUCATION
No. 79-1295

Supreme Court of the United States

June 2, 1980

The appeal is dismissed for want of a substantial federal question.

Mr. Justice WHITE, with whom Mr. Justice REHNQUIST joins, concurring.

Under Pennsylvania law, a public school district must provide nonpublic school children with transportation to and

Page 446 U.S. 970 , 971

from school and transportation for educational field trips if those services are provided to public school children. Pa.Stat.Ann., Tit. 24, 13-1361 (Purdon Supp. 1979-1980). The present controversy centers on that portion of the statute dealing with transportation to and from school. Mr. Justice BLACKMUN's concurring opinion, however, post, at 978, states that it "is not automatically apparent from the jurisdictional statement and the motion to dismiss that have been filed with this Court, or from the summary opinion of the [Pennsylvania] Commonwealth Court," that the constitutionality of the field-trip provision is not before us. I write both to demonstrate that the absence of the field-trip issue is absolutely clear and to analyze the law that Mr. Justice BLACKMUN would apply to this case if the field-trip issue were present.

I

In School District of Pittsburgh v. Pennsylvania Dept. of Education, 443 U.S. 901 (1979), we dismissed for want of a substantial federal question an appeal challenging the constitutionality of the same statute challenged here. The question presented by the jurisdictional statement in School District of Pittsburgh reads as follows: "Whether Pennsylvania Act 372 of 1972 [Act of Dec. 29, 1972, P.L. 1726, No. 372, amending 1361 of the Public School Code of 1949 (24 P.S. 13-1361, as amended)] requiring school districts to transport resident nonpublic school pupils to and from schools located up to 10 miles beyond district boundaries violates the Establishment Clause of the First Amendment of the Constitution of the United States because of the Act's primary effect of advancing religion in addition to fostering excessive entanglement of the state with religion." Juris. Statement, O.T. 1978, No. 78-1614, p. 3. The question presented by the jurisdictional statement in the instant case is identically phrased. Juris. Statement 4. Because a ruling of dismissal for want of a substantial federal question is a judgment on the merits, Hicks v. [446 U.S. 970 , 972]


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