411 U.S. 192 (1973), 71-1470, Lemon v. Kurtzman

Docket Nº:No. 71-1470
Citation:411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151
Party Name:Lemon v. Kurtzman
Case Date:April 02, 1973
Court:United States Supreme Court

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411 U.S. 192 (1973)

93 S.Ct. 1463, 36 L.Ed.2d 151




No. 71-1470

United States Supreme Court

April 2, 1973

Argued November 8, 1972




Following this Court's invalidation in Lemon v. Kurtzman, 403 U.S. 602 (Lemon I) of Pennsylvania's statutory program to reimburse nonpublic sectarian schools (hereafter school) for secular educational services, the District Court, on remand, enjoined any payments under the program for services rendered after Lemon I, but permitted Pennsylvania to reimburse the schools for service performed prior to that decision. Appellants challenge the scope of this decree.

Held: The judgment is affirmed. Pp. 197-209.

348 F.Supp. 300, affirmed.

THE CHIEF JUSTICE, in an opinion joined by MR. JUSTICE BLACKMUN, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST, concluded that the District Court did not abuse its discretion in permitting Pennsylvania to reimburse the schools for services rendered and costs incurred in reliance on the statutory scheme prior to its invalidation in Lemon I. Pp. 197-209.

(a) An unconstitutional statute is not absolutely void, but is a practical reality upon which people rely. Courts recognize that reality. Pp. 197-199.

(b) A trial court has wide latitude in shaping an equitable decree and reaching an accommodation between public and private needs. Pp. 200-201.

(c) The contested reimbursement will not contravene the constitutional principle of Lemon I of avoiding the ongoing entanglement of church and state, since only a final, ministerial post-audit is involved, and no further detailed state surveillance of the schools is required. At the same time, however, supervision already conducted by Pennsylvania officials insures that the proposed reimbursement will not be used for sectarian purposes. The proposed payment reflects only the schools' expenses incurred in expectation of reimbursement. Pp. 201-202.

(d) The schools relied in good faith on the state statute, which invited the contracts and authorized reimbursement for past services; and appellants, in self-styled "sensible recognition of the

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practical realities of the situation," may well have encouraged such reliance by the schools by not moving to have the payments enjoined before the contract service had been performed. Pp. 203-205.

(e) The schools could not have anticipated the Lemon I holding, which involved resolution of an issue of first impression that "was not clearly foreshadowed." Pp. 206-207.

(f) A State and those with whom it deals are not to be subjected to harsh retrospective relief merely because they act on the basis of presumptively valid legislation, in the absence of contrary judicial direction. Pp. 207-209.

MR. JUSTICE WHITE concurred in the judgment.

BURGER, C.J., announced the judgment of the Court and an opinion in which BLACKMUN, POWELL, and REHNQUIST, JJ., joined. WHITE J., concurred in the judgment. DOUGLAS, J., filed a dissenting opinion, in which BRENNAN and STEWART, JJ., joined, post, p. 209. MARSHALL, J., took no part in the consideration or decision of the case.

BURGER, J., lead opinion

MR. CHIEF JUSTICE BURGER announced the judgment of the Court and an opinion in which MR. JUSTICE BLACKMUN, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST join.

On June 28, 1971, we held that the Pennsylvania statutory program to reimburse nonpublic sectarian schools for certain secular educational services violated the Establishment Clause of the First Amendment. The case was remanded to the three-judge District Court for further

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proceedings consistent with our opinion. Lemon v. Kurtzman, 403 U.S. 602 (1971) (Lemon I). On remand, the District Court entered summary judgment in favor of appellants and enjoined payment, under Act 109, of any state funds to nonpublic sectarian schools for educational services performed after June 28, 1971. The District Court's order permitted the State to reimburse nonpublic sectarian schools for services provided before our decision in Lemon I. Appellants made no claim that appellees refund all sums paid under the Pennsylvania statute1 struck down in Lemon I.

Appellants, the successful plaintiffs of Lemon I, now challenge the limited scope of the District Court's injunction. Specifically, they assert that the District Court erred in refusing to enjoin payment of some $24 million set aside by Pennsylvania to compensate nonpublic sectarian schools for educational services rendered by them during the 1970-1971 school year. We noted probable jurisdiction, 406 U.S. 943 (1972), and we affirm the judgment of the District Court.


The specifics of the Pennsylvania statutory scheme held unconstitutional in Lemon I need be recalled only briefly. Under Act 109, the participating nonpublic schools of Pennsylvania were to be reimbursed by the State for certain educational services provided by the schools pursuant to "purchase of service" contracts with the State. According to the terms of the contracts, the schools were to provide teachers, textbooks, and instructional materials for mathematics, modern foreign language, physical science, and physical education courses -- "secular" courses of instruction. The State was not only to compensate the schools for the services provided, but

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also to undertake continuing surveillance of the instructional programs to insure that the services purchased were not provided in connection with "any subject matter expressing religious teaching, or the morals or forms of worship of any sect." See Lemon I, supra, at 609-610.

Under § 5607 of the Act, any nonpublic school seeking reimbursement was to

maintain such accounting procedures, including maintenance of separate funds and accounts pertaining to the cost of secular educational service, as to establish that it actually expended in support of such service an amount of money equal to the amount of money sought in reimbursement.

To this end, the school accounts were to be subject to audit by the State Auditor General. Actual payment was to be made by the Superintendent of Public Instruction

in four equal installments payable on the first day of September, December, March and June of the school term following the school term in which the secular educational service was rendered.

(Emphasis supplied.)

In Lemon I, we held that, although Act 109 had a secular legislative purpose, the Act fostered "excessive entanglement" of church schools and State through the requirement of ongoing state scrutiny of the educational programs of sectarian schools, the statutory post-audit procedures, and potential involvement in the political process. We found it unnecessary to decide whether [93 S.Ct. 1467] Act 109 was constitutionally infirm on the additional ground that the "primary effect" of any state payments to church-related schools would be to promote the cause of religion in contravention of the Establishment Clause of the First Amendment.


Against this backdrop, we turn to the events relevant to this appeal. On June 19, 1968, Act 109 became law. Approximately one month later, appellants publicly declared their intention of challenging the constitutionality

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of the new legislation. During the following six months, the State took steps to implement the Act, promulgating regulations and, in January, 1969, entering for the first time into service contracts for the 1968-1969 school year (then in progress) with approximately 1,181 nonpublic schools throughout Pennsylvania. The schools submitted schedules in June, 1969, at the conclusion of the 1968-1969 school year, specifying the precise items of expense during that year for which they would seek reimbursement, to be made during the 1969-1970 school year. On June 3, 1969, appellants filed their complaint, asking that Act 109 be declared unconstitutional, and its enforcement enjoined.

Simultaneously with their 1969 complaint, appellants filed a motion for a preliminary injunction to restrain the responsible state officials from "paying or processing for paying any funds pursuant to [Act 109]." However, appellants abandoned the request for preliminary relief in a letter of August 28, 1969, from their counsel to Judge Troutman. Appellants, describing their position as a

sensible recognition of the practical realities of the situation, . . . withdrew from any attempt to prevent initial payment to the nonpublic schools scheduled for September 2 [1969].

In the same letter, appellants' counsel mentioned the payments scheduled for December 2, 1969, but, in fact, no attempt was ever made to enjoin those reimbursements.

On November 29, 1969, a divided District Court granted appellees' motion to dismiss appellants' complaint for failure to state a claim on which relief could be granted. Appellants filed a notice of appeal to this Court on December 17, 1969; at no time before or after probable jurisdiction was noted on April 20, 1970, did appellant move for interlocutory relief pending appeal, even though, on January 15, 1970, the schools entered into service contracts with the State for the 1969-1970 school year.

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Consequently, the District Court had no occasion to consider the exercise of injunctive power pendente lite.

In September, 1970, the schools began performing services for the 1970-1971 school year, compensable under the terms of Act 109, and, on January 15, 1971, contracts were entered into for that school year. On June 28, 1971, we held Act 109 unconstitutional and remanded the cause to the District Court for further proceedings consistent with our opinion. Not until appellant filed their motion...

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