Roman Catholic Archdiocese of Philadelphia v. Com., Pennsylvania Human Relations Com'n
| Decision Date | 15 September 1988 |
| Citation | 119 Pa.Cmwlth. 445,548 A.2d 328 |
| Parties | , 57 USLW 2206, 49 Ed. Law Rep. 650 ROMAN CATHOLIC ARCHDIOCESE OF PHILADELPHIA and St. Stephen's Parish, Petitioners, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA HUMAN RELATIONS COMMISSION et al., Respondents. |
| Court | Pennsylvania Commonwealth Court |
Sandra A. Girifalco, James K. Grasty, Stradley, Ronon, Stevens & Young, Philadelphia, and Philip J. Murren, Ball, Skelly, Murren & Connell, Harrisburg, for petitioners.
Michael Hardiman, Asst. Gen. Counsel, Philadelphia, and Carl H. Summerson, Elisabeth S. Shuster, Harrisburg, for Human Relations Com'n.
Before CRUMLISH, Jr., President Judge, and CRAIG, MacPHAIL, DOYLE, BARRY, COLINS and McGINLEY, JJ.
This case involves interlocutory orders of the Motions Commissioner of the Pennsylvania Human Relations Commission. The cases concern racial or ethnic discrimination allegedly perpetrated by Roman Catholic schools operated by the Roman Catholic Archdiocese of Philadelphia. The complaint at Docket No. P-2175, Shirley Harris, on behalf of her minor daughter, Catrina Harris v. John W. Hallahan High School, alleges harsh disciplinary actions against Catrina Harris by the nuns at the school because of her race, sanctions which were not invoked against white students. The case of Vernell L. Sebrell, on behalf of her minor son, Phillip D. Sebrell v. St. Stephen School, Docket No. P-2416, alleges constant harassment and humiliation because of the minor's black race and Baptist Christian religion. The case of Jose Torres, on behalf of his minor son, Mi- chael Torres v. Northeast Catholic High School for Boys, Docket No. P-2636 alleges harassment and assault of Michael Torres because of his Hispanic origin by fellow students at the school who were not appropriately disciplined because they were not Hispanic. The case of Delores T. Martin, on behalf of her minor daughter, Tonya James and others similarly situated v. Lansdale Catholic High School, Docket No. P-2691 alleges that the head coach of the Lansdale female basketball team made offensive and racially discriminatory remarks directed at Tonya James, who is a member of the Pottstown girls' basketball team.
The appellants denied the allegations in the various complaints and also filed motions to dismiss. By four orders dated November 23, 1987, the Motions Commissioner denied the motions to dismiss. Leave was given by the Motions Commissioner to appeal the interlocutory orders involved. Permission to appeal these orders was granted by this Court on January 11, 1988. The appellants contend that the Catholic church-schools involved are not places of "public accommodation, resort or amusement" within the meaning of the Pennsylvania Human Relations Act. Act of February 28, 1961, P.L. 47 § 2, 43 P.S. § 954(l ), 955(i)(1). They also claim a violation of the Free Exercise and Establishment Clauses of the First Amendment to the Constitution of the United States. The appellee contends none of the incidents complained of concern or even touch upon matters peculiar to the religion of the operators of the schools and that the Commission is required by statute to accept such complaints, to embark on mandated investigation, and if appropriate to remedy the complained of practices. Appellee contends that the Pennsylvania Human Relations Act lists schools as within the purview of the public accommodation sections of the Act without limitation or qualification as to private or sectarian schools. Appellee further contends that the only exclusion that could be applicable to such institutions would require a showing that these schools are "distinctly private" which the appellants' church run schools cannot demonstrate.
At issue is Section 4(l ) 43 P.S. Section 954(l ) which states:
(1) The term "public accommodation, resort or amusement" means any accommodation, resort or amusement which is open to, accepts or solicits the patronage of the general public, including but not limited to inns, taverns, roadhouses, hotels, motels, whether conducted for the entertainment of transient guests or for the accommodation of those seeking health, recreation or rest, or restuarants or eating houses, or any place where food is sold for consumption on the premises, buffets, saloons, barrooms or any store, park or enclosure where spirituous or malt liquors are sold, ice cream parlors, confectioneries, soda fountains and all stores where ice cream ice and fruit preparations or their derivatives, or where beverages of any kind are retailed for consumption on the premises, drug stores, dispensaries, clinics, hospitals, bathhouses, swimming pools, barber shops, beauty parlors, retail stores and establishments, theatres, motion picture houses, airdromes, roof gardens, music halls, race courses, skating rinks, amusement and recreation parks, fairs, bowling alleys, gymnasiums, shooting galleries, billiard and pool parlors, public libraries, kindergartens, primary and secondary schools, high schools, academies, colleges and universities, extension courses and all educational institutions under the supervision of the Commonwealth, nonsectarian cemeteries, garages and all public conveyances operated on land or water or in the air as well as the stations, terminals and airports thereof, financial institutions and all Commonwealth facilities and services, including such facilities and services of all political subdivisions thereof, but shall not included any accommodations which are in their nature distinctly private.
We have set forth the entire text of the definition because in interpreting section 4 the long list of types of accommodation obviously does not say "parochial schools" and the legal maxim "expressio unius est exclusio alterius" may govern in this instance.
The Motions Commissioner in each of the four cases involved points out that appellants clearly acknowledge that students who are not Catholic are admitted into the schools and concludes that the schools are not "distinctly private".
The appellants in their brief counter-argue that the church-schools are the principal organs for the transmission of the Catholic faith to new generations of Catholics. They cite various documents of the Vatican II Council of 1965 and statements and publications of the Catholic Bishops of the United States Conference for this purpose. However, in the present posture of this case, where no testimony has been taken and we are concerned only with preliminary motions, the Court is not able to consider any of these sources which are not in evidence and which are not part of the record. We note, however, the case of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), which involved the issue of whether the religion clauses of the First Amendment were violated by state statutes which provided state aid to church-related elementary and secondary schools, and to teachers therein, with regard to instruction in secular matters. Finding the statutes violated the First Amendment, the Court made the following observation on the findings of the district court which had
concluded that the parochial schools constituted an "integral part of the religious mission of the Catholic church". The various characteristics of the schools make them "a powerful vehicle for transmitting the Catholic faith to the next generation". This process of inculcating religious doctrine is, of course, enhanced by the impressionable age of the pupils, in primary schools particularly. In short, parochial schools involve substantial religious activity and purpose.
Lemon at 616, 91 S.Ct. at 2113. The concurring opinion of Mr. Justice Douglas, joined by Mr. Justice Black, also points out
The analysis of the constitutional objections to these two state systems of grants to parochial or sectarian schools must start with the admitted and obvious fact the raison d'etre of parochial schools is the propagation of religious faith.
Lemon at 628, 91 S.Ct. at 2118. We outline the orientation of these schools not at this point to discuss the constitutional issues raised by the appellants but to point out that their religious character supports the appellants' argument that they are "distinctly private" in nature.
The Supreme Court of the United States quoted with approval Mr. Justice Douglas's language in his concurring opinion in Lemon when it ruled that teachers in church operated schools were not within the coverage of the National Labor Relations Act. 29 U.S.C. § 151, et seq., National Labor Relations Board v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 553 (1979), so that the NLRB had no jurisdiction over teachers' unions in church operated schools. In that case the National Labor Relations Board argued that jurisdiction should attach because the schools chose to entangle themselves with the secular world when they decided to hire lay teachers. We discuss this case only in the broad context of trying to arrive at a meaning of the term "distinctly private". The appellees' brief, we believe, correctly and succinctly sets forth the appellants' policy in regard to the admission of non-Catholic students from the general public to the four schools involved:
Appellants' church schools undeniably do accept non-Catholic students from the general public to fill whatever vacant spaces remain in schools to maximize tuition revenue potential. The fact that these non-Catholics, as a condition of receiving education in the church schools must take religion classes and attend services, does not transmute the experience into one "distinctly private."
Appellants point to remarks of Representative Herbert Fineman, Legislative Journal--House, April 5, 1961 page 992 which purport to exclude religious and denominational educational institutions from the term "public accommodation". We note, however, that comments of individual legislators during debate on legislative bills...
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