Meek v. Pittenger 8212 1765

Decision Date19 May 1975
Docket NumberNo. 73,73
Citation421 U.S. 349,95 S.Ct. 1753,44 L.Ed.2d 217
PartiesSylvia MEEK et al., Appellants, v. John C. PITTENGER, etc., et al. —1765
CourtU.S. Supreme Court

See 422 U.S. 1049, 95 S.Ct. 2668.

Syllabus

The Commonwealth of Pennsylvania is authorized to provide directly to all children enrolled in nonpublic elementary and secondary schools meeting Pennsylvania's compulsory-attendance requirements 'auxiliary services' (Act 194) and loans of textbooks 'acceptable for use in' the public schools (Act 195). Act 195 also provides for loans directly to the nonpublic schools of 'instructional materials and equipment, useful to the education' of nonpublic school children. The auxiliary services include counseling, testing, psychological services, speech and hearing therapy, and related services for exceptional, remedial, or educationally disadvantaged students, 'and such other secular, neutral, non-ideological services as are of benefit to nonpublic school children' and are provided for those in public schools. The instructional materials include periodicals, photographs, maps, charts, recordings. and films. The instructional equipment includes projectors, recorders, and laboratory paraphernalia. Appellants brought this suit in the District Court challenging the constitutionality of both Acts. The court upheld that constitutionality of the textbook and instructional materials loan programs and the auxiliary services program but invalidated the instructional equipment loan program to the extent that it sanctioned the loan of equipment 'which from its nature can be diverted to religious purposes.' Held: Act 194 and all but the textbook loan provisions of Act 195 violate the Establishment Clause of the First Amendment as made applicable to the States by the Fourteenth. Pp. 359-372; 388.

374 F.Supp. 639, affirmed in part, reversed in part.

Mr. Justice STEWART delivered the opinion of the Court with respect to Parts I, II, IV, and V. finding:

1. The direct loan of instructional materials and equipment to nonpublic schools authorized by Act 195 has the unconstitutional primary effect of establishing religion because of the predomi- nantly religious character of the schools benefiting from the Act since 75% of Pennsylvania's nonpublic schools that comply with the compulsory-attendance law and thus qualify for aid under Act 195 are church related or religiously affiliated. The massive aid that nonpublic schools thus receive is neither indirect nor incidental, and even though such aid is ostensibly limited to secular instructional material and equipment the inescapable result is the direct and substantial advancement of religious activity. Pp. 362-366.

2. Act 194 also violates the Establishment Clause because the auxiliary services are provided at predominantly church-related schools. The District Court erred in holding that such services are permissible because they are only secular, neutral, and nonideological, since excessive entanglement would be required for Pennsylvania to be assured that the public school professional staff members who provide the services of not advance the religious mission of the church-related schools in which they serve. Cf., Lemon v. Kurtzman, 403 U.S. 602, 618, 91 S.Ct. 2105, 2113, 29 L.Ed.2d 745. Pp. 367-372.

Mr. Justice STEWART, joined by Mr. Justice BLACKMUN and Mr. Justice POWELL, concluded in Part III that Act 195's textbook loan provisions, which are limited to textbooks acceptable for use in the public schools, are constitutional, since they 'merely (make) available to all children the benefits of a general program to lend schools books, free of charge,' and the 'financial benefit is to parents and children, not to schools,' Board of Education v. Allen, 392 U.S. 236, 243—244, 88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060. P. 359-362.

Mr. Justice REHNQUIST, joined by Mr. Justice WHITE, concluded that the textbook loan program of Act 195 is constitutionally indistinguishable from the program upheld in Board of Education v. Allen, supra, Pp. 388.

Leo Pfeffer, New York City, and William P. Thorn, Philadelphia, Pa., for appellants.

William B. Ball, J. Justin Blewitt, Jr., Harrisburg, Pa., and Henry T. Reath, Philadelphia, Pa., for appellees.

Mr. Justice STEWART announced the judgment of the Court and delivered the opinion of the Court (Parts I, II, IV, and V), together with an opinion (Part III), in which Mr. Justice BLACKMUN and Mr. Justice POWELL, joined.

This case requires us to determine once again whether a state law providing assistance to nonpublic, church-related, elementary and secondary schools is constitutional under the Establishment Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment. Murdock v. Pennsylvania, 319 U.S. 105, 108, 63 S.Ct. 870, 872, 87 L.Ed. 1292; Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213.

I

With the stated purpose of assuring that every schoolchild in the Commonwealth will equitably share in the benefits of auxiliary services, textbooks, and instructional material provided free of charge to children attending public schools,1 the Pennsylvania General Assembly in 1972 added Acts 194 and 195, July 12, 1972, Pa.Stat.Ann., Tit. 24, § 9—972, to the Pennsylvania Public School Code of 1949, Pa.Stat.Ann., Tit. 24, §§ 1—101 to 27—2702.

Act 194 authorizes the Commonwealth to provide 'auxiliary services' to all children enrolled in nonpublic elementary and secondary schools meeting Pennsylvania's compulsory-attendance requirements.2 'Auxiliary serv- ices' include counseling, testing, and psychological services, speech and hearing therapy, teaching and related services for exceptional children, for remedial students, and for the educationally disadvantaged, 'and such other secular, neutral, nonideological services as are of benefit to nonpublic school children and are presently or hereafter provided for public school children of the Commonwealth.' Act 194 specifies that the teaching and services are to be provided in the nonpublic schools themselves by personnel drawn from the appropriate 'intermediate unit,' part of the public school system of the Commonwealth established to provide special services to local school districts. See Pa.Stat.Ann., Tit. 24, §§ 9—951 to 9—971.

Act 195 authorizes the State Secretary of Education, either directly or through the intermediate units, to lend textbooks without charge to children attending nonpublic elementary and secondary schools that meet the Common- wealth's compulsory-attendance requirements.3 The books that may be lent are limited to those 'which are acceptable for use in any public, elementary, or secondary school of the Commonwealth.'

'(d) Purchase of Books. The secretary shall not be required to purchase or otherwise acquire textbooks, pursuant to this section, the total cost of which, in any school year, shall exceed an amount equal to ten dollars ($10) multiplied by the number of children residing in the Commonwealth who on the first day of October of such school year are enrolled in grades kindergarten through twelve of a nonpublic school within the Commonwealth in which the requirements of the compulsory attendance provisions of this act may be met.'

Act 195 also authorizes the Secretary of Education, pursuant to requests from the appropriate nonpublic school officials, to lend directly to the nonpublic schools 'instructional materials and equipment, useful to the education' of nonpublic school children.4 'Instructional materials' are defined to include periodicals, photographs, maps, charts, sound recordings, films, 'or any others printed and published materials of a similar nature.' 'Instructional equipment,' as defined by the Act, includes projection equipment, recording equipment, and laboratory equipment.

On February 7, 1973, three individuals and four organizations5 filed a complaint in the District Court for the Eastern District of Pennsylvania challenging the constitutionality of Acts 194 and 195, and requesting an injunction prohibiting the expenditure of any funds under either statute. The complaint alleged that each Act 'is a law respecting an establishment of religion in violation of the First Amendment' because each Act 'authorizes and directs payments to or use of books, materials and equipment in schools which (1) are controlled by churches or religious organizations, (2) have as their purpose the teaching, propagation and promotion of a particular religious faith, (3) conduct their operations, curriculums and programs to fulfill that purpose, (4) impose religious restrictions on admissions, (5) require attendance at instruction in theology and religious doctrine, (6) require attendance at or participation in religious worship, (7) are an integral part of the religious mission of the sponsoring church, (8) have as a substantial or dominant purpose the inculcation of religious values, (9) impose religious restrictions on faculty appointments, and (10) impose religious restrictions on what the faculty may teach.' The Secretary of Education and the Treasurer of the Commonwealth were named as the defendants.6

A three-judge court was convened pursuant to 28 U.S.C. §§ 2281, 2284. After an evidentiary hearing, the court entered its final judgment. 374 F.Supp. 639. In that judgment the court unanimously upheld the constitutionality of the textbook loan program authorized by Act 195. 374 F.Supp., at 657—658. By a divided vote the court also upheld the constitutionality of Act 194's provision of auxiliary services to children in nonpublic elementary and secondary schools and Act 195's authorization of loans of instructional materials directly to nonpublic elementary and secondary schools. 374 F.Supp., at 653—659. The court unanimously invalidated that portion of Act 195 authorizing the expenditure of commonwealth funds for the purchase of instructional equipment for loan to nonpublic schools, but...

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