Subsequent to
Lemon v. Kurtzman, 403 U.
S. 602, Pennsylvania enacted the "Parent Reimbursement
Act for Nonpublic Education," providing funds to reimburse parents
for a portion of tuition expenses incurred in sending their
children to nonpublic schools. The three-judge District Court held
that the law violated the Establishment Clause, granted plaintiffs'
motion for summary judgment, and permanently enjoined disbursement
of any funds under the Act. The Court also indicated that
"more than 900 of the children attending nonpublic schools in .
. . Pennsylvania are enrolled in schools that are controlled by
religious organizations or that have the purpose of propagating and
promoting religious faith,"
and ruled that the Act could not properly be viewed as
containing a separable provision for aid to parents whose children
attended nonsectarian, nonpublic schools.
Held:
1. There is no constitutionally significant difference between
Pennsylvania's tuition grant scheme, with its intended consequence
of preserving and supporting religion-oriented institutions, and
New York's tuition reimbursement program held violative of the
Establishment Clause in
Committee for Public Education &
Religious Liberty v. Nyquist, ante, p.
413 U. S. 756. Pp.
413 U. S.
828-833.
2. The Act is not severable, but even if it were clearly
severable, valid aid to nonpublic, nonsectarian schools can provide
no basis for sustaining aid to sectarian schools. The Equal
Protection Clause cannot be relied upon to sustain a program
violative of the Establishment Clause. Pp.
413 U. S.
833-835.
340
F. Supp. 1356, affirmed.
POWELL, J., delivered the opinion of the Court, in which
DOUGLAS, BRENNAN, STEWART, MARSHALL, and BLACKMUN, JJ., joined.
BURGER, C.J., filed a dissenting opinion, in which WHITE and
REHNQUIST,
Page 413 U. S. 826
JJ., joined,
ante p.
413 U. S. 798.
WHITE, J., filed a dissenting opinion, in which BURGER, C.J., and
REHNQUIST, J., joined,
ante p.
413 U. S.
813.
MR. JUSTICE POWELL delivered the opinion of the Court.
On June 28, 1971, this Court handed down
Lemon v.
Kurtzman, 403 U. S. 602, in
which Pennsylvania's "Nonpublic Elementary and Secondary Education
Act" was held unconstitutional as violative of the Establishment
Clause of the First Amendment. That law authorized the State to
reimburse nonpublic, sectarian schools for their expenditures on
teachers' salaries, textbooks, and instructional materials used in
specified "secular" courses.
Page 413 U. S. 827
The Court's ruling was premised on its determination that the
restrictions and state supervision required to guarantee that the
specified aid would benefit only the nonreligious activities of the
schools would foster "excessive entanglement" between government
and religion.
Id. at
403 U. S.
620-622.
On August 27, 1971, the Pennsylvania General Assembly
promulgated a new aid law, entitled the "Parent Reimbursement Act
for Nonpublic Education," providing funds to reimburse parents for
a portion of tuition expenses incurred in sending their children to
nonpublic schools. Shortly thereafter, this suit, challenging the
enactment and seeking declaratory and injunctive relief, was filed
in the United States District Court for the Eastern District of
Pennsylvania. The plaintiffs were Pennsylvania residents and
taxpayers who had paid the state tax used to finance the aid
program, and at least one plaintiff was also the parent of a child
attending a public school within the State. The State Treasurer was
named as the defendant and was sued in that capacity. Motions to
intervene on the side of the State were granted to a number of
parents whose children were enrolled in nonpublic schools and who
were therefore entitled to payments under the challenged law.
The defendant and intervenors filed a motion to dismiss the
complaint for failure to state a claim upon which relief might be
granted. The motion was considered by a properly constituted
three-judge District Court. On April 6, 1972, the panel denied the
motion in a full opinion explicating its views and holding that the
law violated the Establishment Clause.
340
F. Supp. 1356. On the basis of that opinion, the District Court
subsequently issued an order granting plaintiffs' motion for
summary judgment and permanently enjoining the disbursement of any
funds under the Act. Its
Page 413 U. S. 828
order also ruled that the Act could not properly be viewed as
containing a separable provision for aid to parents whose children
attended
nonsectarian, nonpublic schools.
Direct appeals were docketed in this Court by the State
Treasurer and by the several intervenors. [
Footnote 1] We noted probable jurisdiction,
consolidated the appeals for oral argument, and scheduled the cases
to be argued with the several appeals in a case from New York
involving an issue in common with this case. 410 U.S. 907 (1973).
We have today held in
Committee for Public Education &
Religious Liberty v. Nyquist, ante, p.
413 U. S. 756,
that New York's tuition reimbursement legislation has the
impermissible effect of advancing religious institutions and is
therefore unconstitutional under the Establishment Clause. Because
we find no constitutionally significant difference between New
York's and Pennsylvania's programs, that decision compels our
affirmance of the District Court's decision here.
I
Pennsylvania's "Parent Reimbursement Act for Nonpublic
Education" [
Footnote 2]
provides for reimbursement to parents who pay tuition for their
children to attend the State's nonpublic elementary and secondary
schools. Qualifying parents are entitled to receive $75 for each
dependent enrolled in an elementary school, and $150 for each
dependent in a secondary school, unless that amount exceeds the
amount of tuition actually paid.
Page 413 U. S. 829
The money to fund this program is to be derived from a portion
of the revenues from the State's tax on cigarette sales, and is to
be administered by a five-member committee appointed by the
Governor, known as the "Pennsylvania Parent Assistance Authority."
In an effort to avoid the "entanglement" problem that flawed its
prior aid statute,
Lemon v. Kurtzman, supra, the new
legislation specifically precludes the administering authority from
having any
"direction, supervision or control over the policy
determinations, personnel, curriculum, program of instruction or
any other aspect of the administration or operation of any
nonpublic school or schools. [
Footnote 3]"
Similarly, the statute imposes no restrictions or limitations on
the uses to which the reimbursement allotments can be put by the
qualifying parents.
Like the New York tuition program, the Pennsylvania law is
prefaced by "legislative findings," which emphasize its underlying
secular purposes: parents who send their children to nonpublic
schools reduce the total cost of public education; "inflation, plus
sharply rising costs of education, now combine to place in jeopardy
the ability of such parents fully to carry this burden"; if the
State's 500,000 nonpublic school children were to transfer to the
public schools, the annual operating costs to the State would be
$400 million, and the added capital costs would exceed $1 billion;
therefore, "parents who maintain students in nonpublic schools
provide a vital service" and deserve at least partial reimbursement
for alleviating an otherwise "intolerable public burden." [
Footnote 4] We certainly do not
question now, any more than we did two Terms ago in
Lemon v.
Kurtzman, [
Footnote 5] the
reality and
Page 413 U. S. 830
legitimacy of Pennsylvania's secular purposes.
See Committee
for Public Education Religious Liberty v. Nyquist, ante at
413 U. S.
773.
We turn, then, to consider the new law's effect. As the case was
decided in the District Court initially on defendant's and
intervenors' motions to dismiss, the court accepted as true
plaintiffs' allegation with respect to the identifying
characteristics of the schools qualifying under the Act. 340 F.
Supp. at 1359. Those characteristics are largely the same as the
ones used by the District Court to describe typical sectarian
schools in New York.
Ante at
413 U. S.
767-768. In its subsequent order granting summary
judgment in plaintiffs' favor, the District Court indicated that
"more than 90% of the children attending nonpublic schools in the
Commonwealth of Pennsylvania are enrolled in schools that are
controlled by religious organizations or that have the purpose of
propagating and promoting religious faith." App. 87a. This finding
is consistent with the evidence in
Lemon v. Kurtzman, in
which the Court noted that more than 96% of the children attending
nonpublic schools in Pennsylvania in 1969 "attend[ed]
church-related schools, and most of these schools are affiliated
with the Roman Catholic church." 403 U.S. at
403 U. S.
610.
For purposes of determining whether the Pennsylvania tuition
reimbursement program has the impermissible effect of advancing
religion, we find no constitutionally significant distinctions
between this law and the one declared invalid today in
Nyquist. Each authorizes the States to use tax raised
funds for tuition reimbursements
Page 413 U. S. 831
payable to parents who send their children to nonpublic schools.
Neither tells parents how they must spend the amount received.
While the Pennsylvania grants' are more generous ($75 to $150, as
opposed to $50 to $100), and while Pennsylvania imposes no ceiling
on the number of children for whom parents may claim tuition
reimbursement or on the percentage of the tuition bill for which
parents may be reimbursed, [
Footnote 6] these considerations are irrelevant to the
First Amendment question.
Neither the State Treasurer nor appellant intervenor in No.
72-620 has suggested any way in which the present law might be
distinguished from the one in question in
Nyquist. The
intervenors in No. 72-459 have, however, proffered a distinction
which deserves discussion because it serves to underline the basis
for our ruling in these cases. Intervenors suggest that New York's
law might be differentiated on the ground that, because tuition
grants there were available only to parents in an extremely low
income bracket (less than $5,000 of taxable income), it would be
reasonable to predict that the grant would, in fact, be used to pay
tuition, rendering the parent a mere "conduit" for public aid to
religious schools. Since Pennsylvania authorizes grants to all
parents of children in nonpublic schools -- regardless of income
level -- it is argued that no such assumption can be made as to how
individual parents will spend their reimbursed amounts. [
Footnote 7]
Page 413 U. S. 832
Our decision, however, is not dependent upon any such
speculation. Instead we look to the substance of the program, and
no matter how it is characterized its effect remains the same. The
State has singled out a class of its citizens for a special
economic benefit. Whether that benefit be viewed as a simple
tuition subsidy, as an incentive to parents to send their children
to sectarian schools, or as a reward for having done so, at bottom
its intended consequence is to preserve and support
religion-oriented institutions. We think it plain that this is
quite unlike the sort of "indirect" and "incidental" benefits that
flowed to sectarian schools from programs aiding all parents by
supplying bus transportation and secular textbooks for their
children. Such benefits were carefully restricted to the purely
secular side of church-affiliated institutions and provided no
special aid for those who had chosen to support religious schools.
Yet such aid approached the "verge" of the constitutionally
impermissible.
Everson v. Board of Education, 330 U. S.
1,
330 U. S. 16
(1947). In
Lemon v. Kurtzman, we declined to allow
Everson to be used as the "platform for yet further steps"
in granting assistance to "institutions whose legitimate needs are
growing and whose interests have substantial political support."
403 U.S. at
403 U. S. 624.
Again today we decline to approach or overstep the "precipice"
against which the Establishment Clause protects. We hold that
Pennsylvania's tuition grant scheme violates the constitutional
mandate against the "sponsorship" or "financial support" of
religion or
Page 413 U. S. 833
religious institutions.
Walz v. Tax Comm'n,
397 U. S. 664,
397 U. S. 668
(1970). [
Footnote 8]
II
Apart from the Establishment Clause issues central to this case,
appellant intervenors in No. 72-459 make an equal protection claim
that was not directly ruled on by the District Court. These
intervenors are 12 parents whose children attend nonpublic schools.
Two parents, the Watsons, send their child to a nonsectarian school
while the remainder send their children to sectarian schools. The
District Court's final order enjoined the State Treasurer from
disbursing funds to any parents, irrespective of whether their
children attended sectarian or nonsectarian schools. The court
considered and rejected the argument that the state law should be
treated "as containing a separable provision for aid to parents of
children attending nonpublic schools that are not church-related."
[
Footnote 9] Although the Act
contained a severability clause, [
Footnote 10] the court reasoned that, in view of the fact
that
Page 413 U. S. 834
so substantial a majority of the law's designated beneficiaries
were affiliated with religious organizations, it could not be
assumed that the state legislature would have passed the law to aid
only those attending the relatively few nonsectarian schools.
[
Footnote 11]
Appellants ask this Court to declare the provisions severable,
and thereby to allow tuition reimbursement for parents of children
attending schools that are not church-related. If the parents of
children who attend nonsectarian schools receive assistance, their
argument continues, parents of children who attend sectarian
schools are entitled to the same aid as a matter of equal
protection. The argument is thoroughly spurious. In the first
place, we have been shown no reason to upset the District Court's
conclusion that aid to the nonsectarian school could not be severed
from aid to the sectarian. The statute nowhere sets up this
suggested dichotomy between sectarian and nonsectarian schools, and
to approve such a distinction here would be to create a program
quite different from the one the legislature actually adopted.
See Champlin Refining Co. v. Corporation Commission of
Oklahoma, 286 U. S. 210,
286 U. S. 234
(1932);
cf. Tilton v. Richardson, 403 U.
S. 672,
403 U. S.
683-684 (1971) (plurality opinion). Even if the Act were
clearly severable, valid aid to nonpublic, nonsectarian schools
would provide no lever for aid to their sectarian counterparts. The
Equal Protection Clause has never been regarded as a bludgeon with
which to compel a State to violate other provisions of the
Constitution. Having held that tuition reimbursements for the
benefit of sectarian schools violate the Establishment Clause,
nothing in the Equal Protection Clause will suffice to revive that
program.
Cf.
Page 413 U. S. 835
Brusca v. State Board of Education, 405 U.S. 1050
(1972),
aff'g 332 F.
Supp. 275 (ED Mo. 1971).
III
In holding today that Pennsylvania's post-
Lemon v.
Kurtzman attempt to avoid the Establishment Clause's
prohibition against government entanglements with religion has
failed to satisfy the parallel bar against laws having a primary
effect that advances religion, we are not unaware that appellants
and those who have endeavored to formulate systems of state aid to
nonpublic education may feel that the decisions of this Court have,
indeed, presented them with the "insoluble paradox" to which MR.
JUSTICE WHITE referred in his separate opinion in
Lemon v.
Kurtzman, 403 U.S. at
403 U. S. 668. [
Footnote 12] But if novel forms of aid have not readily
been sustained by this Court, the "fault" lies not with the
doctrines which are said to create a paradox, but rather with the
Establishment Clause itself: "Congress" and the States by virtue of
the Fourteenth Amendment "shall make no law respecting an
establishment of religion." With that judgment we are not free to
tamper, and, while there is "room for play in the joints,"
Walz
v. Tax Comm'n, supra, at 669, the Amendment's proscription
clearly forecloses Pennsylvania's tuition reimbursement
program.
Affirmed.
[For dissenting opinion of THE CHIEF JUSTICE,
see ante,
p.
413 U. S.
798.]
[For dissenting opinion of MR. JUSTICE WHITE,
see ante,
p.
413 U. S.
813.]
* Together with No. 72-620,
Crouter v. Lemon et al.,
also on appeal from the same court.
[
Footnote 1]
No. 72-459,
Sloan v. Lemon, is an appeal filed by the
State Treasurer and by 12 intervening parents, two of whom are the
Watsons -- the parents of a child registered in a nonreligious,
private school. No. 72-620,
Crouter v. Lemon, is a
separately docketed appeal initiated by another one of the
intervenors.
[
Footnote 2]
Pa.Laws 1971, Act 92, Pa.Stat.Ann., Tit. 24, §§ 5701-5709 (Supp.
1973-1974) (the entire enactment is printed in an appendix to the
District Court's opinion,
340
F. Supp. 1356, 1365-1368).
[
Footnote 3]
Act 92,
supra, § 570
[
Footnote 4]
Id. § 5702.
[
Footnote 5]
These findings are similar to the ones which supported the
Pennsylvania teacher salary reimbursement law involved in
Lemon
v. Kurtzman. There, the Court noted that the Act was passed
"in response to a crisis that the Pennsylvania Legislature found
existed in the State's nonpublic schools due to rapidly rising
costs." 403 U.S. at
403 U. S. 609.
The Court held that the State's interest in enhancing "the quality
of the secular education in all schools covered by the compulsory
attendance laws" was clearly legitimate, and "must therefore be
accorded appropriate deference."
Id. at
403 U. S.
613.
[
Footnote 6]
Since the grants in this case are not limited to reimbursing
only a percentage of the tuition bill, the argument could not be
made here that the law contains any "statistical guarantee of
neutrality,"
Nyquist, ante at
413 U. S.
787.
[
Footnote 7]
Brief for Appellants Diaz et al. 23-24. It was also alleged, as
a ground of distinction between the Pennsylvania and New York
tuition reimbursement grants, that there was less likelihood of
political divisiveness under the Pennsylvania scheme because it is
financed out of a self-perpetuating fund derived from the state
cigarette tax. Thus, it is contended that no annual appropriations
are required and there will be less likelihood of divisive
political pressure for increased grants and expanded aid. We
addressed the problem of potential political divisiveness in
413 U. S.
ante@ at
413 U. S.
794-798. At most, the difference here is one in degree
and one not likely to diminish perceptibly over the long-term the
inevitable demands for increased and expanded aid.
[
Footnote 8]
Appellants have also sought to distinguish
Nyquist on
the ground that Pennsylvania's legislation is more carefully
drafted to avoid excessive administrative entanglements; the
program is administered by an independent authority rather than by
the Commissioner of Education, and its funds are not derived from
the general revenues available for education but from a separate
fund. Brief for Appellant Diaz
et al. 24. Since
Pennsylvania's law falls under the second aspect of our test
because its effect, inevitably, is to advance religion, we need not
address this claimed distinction.
[
Footnote 9]
Order of District Court, dated June 20, 1972, scheduling oral
arguments on plaintiffs' summary judgment motion and outlining the
questions to be argued at that time, reprinted in App. 84a-85a.
[
Footnote 10]
"Section 10. Severability. -- If a part of this act is invalid,
all valid parts
that are severable from the invalid part
remain in effect. If a part of this act is invalid, in one or more
of its applications, the part remains in effect in all valid
applications
that are severable from the invalid
applications."
Pa.Laws 1971, Act 92. (Emphasis supplied.)
[
Footnote 11]
Final Order of District Court, dated July 21, 1972, permanently
enjoining enforcement of the Act, reprinted in App. 87a.
[
Footnote 12]
See also Lemon v. Kurtzman, 403 U.S. at
403 U. S. 640
(DOUGLAS, J., Concurring);
Lemon v. Kurtzman, 411 U.
S. 192,
411 U. S. 203
n. 3 (1973).