Com., Dept. of Ed. v. First School
Decision Date | 28 February 1977 |
Citation | 370 A.2d 702,471 Pa. 471 |
Parties | COMMONWEALTH of Pennsylvania, DEPARTMENT OF EDUCATION, Appellant, v. The FIRST SCHOOL. |
Court | Pennsylvania Supreme Court |
William B. Ball, Harrisburg, for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX, and MANDERINO, JJ.
This is an appeal 1 from a decision of the Commonwealth Court which held that the Nonpublic Elementary and Secondary Education Act ('Act 109') 2 is constitutional and enforceable as applied to nonsectarian nonpublic schools. 3 Appellant, the Commonwealth Department of Education ('Department'), contends that Act 109 was declared unconstitutional in its entirety in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), and thus cannot be enforced even as to nonsectarian schools. The Department also argues that even if Act 109 was not held unconstitutional in its entirety, its provisions are not severable. The Department further asserts that Act 109 has been impliedly repealed by subsequent legislation. Finally, the Department maintains that Act 109, as construed by the Commonwealth Court, cannot be constitutionally administered.
We reject the Department's contentions. We hold that Act 109 is constitutional and enforceable as applied to nonsectarian nonpublic schools and accordingly affirm the Commonwealth Court order.
On July 25, 1974, appellee, the First School, a nonsectarian nonpublic school, filed 'An Application for Nonpublic School Aid' pursuant to Act 109. The Department denied the First School's application because it considered Act 109 to be invalid in its entirety in light of Lemon v. Kurtzman, supra. After the Secretary of Education affirmed the Department's denial of aid, the First School appealed to the Commonwealth Court, which held that Act 109 was valid as applied to nonsectarian nonpublic schools and ordered the Department to process the First School's application.
The Department contends that the United States Supreme Court held Act 109 unconstitutional in its entirety in Lemon v. Kurtzman, supra. 4 To evaluate this contention it is first necessary to review the procedural history of Lemon. Plaintiffs brought suit in federal district court to enjoin the allegedly unconstitutional approval and expenditure of public funds to sectarian nonpublic schools under Act 109. The three-judge district court 5 held that Act 109 violated neither the establishment nor free exercise clauses of the first amendment and granted a motion to dismiss the complaint. Lemon v. Kurtzman, 310 F.Supp. 35 (E.D.Pa.1969). On appeal, the United States Supreme Court held that Act 109, which authorizes direct reimbursement to sectarian and nonsectarian nonpublic schools for actual expenditures for teachers' salaries, textbooks and instructional materials, fostered excessive entanglement between government and religion in violation of the establishment clause of the first amendment. Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (Lemon I). The Court reversed the district court order dismissing the complaint, and remanded the case for further proceedings consistent with its opinion.
On remand, the district court entered summary judgment for plaintiffs and restrained payments to Sectarian nonpublic schools for services performed or costs incurred subsequent to June 28, 1971, the date Lemon I was filed. The district court, however, upheld payments to sectarian nonpublic schools for services performed or costs incurred prior to June 28, 1971. 6 The United States Supreme Court affirmed this order in Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973) (Lemon II).
A careful analysis of Lemon I reveals that the Supreme Court found Act 109 unconstitutional because it fostered an excessive entanglement between government and religion in violation of the establishment clause of the first amendment. Specifically, the Court held that the constitutional infirmity arose from (1) the restriction and surveillance necessary to ensure that teachers in sectarian nonpublic schools play a strictly nonideological role; 7 (2) the state supervision of sectarian nonpublic school accounting procedures required to distinguish secular from religious education; 8 and (3) the continuous financial aid given directly to sectarian nonpublic schools for teachers' salaries, textbooks and instructional materials. 9 Additionally, the Court cited the danger of entanglement which could result from the divisive political potential of Act 109, noting that 'political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.' 10
The constitutional infirmities of Act 109 stem from the entanglement between the state and sectarian nonpublic schools. The Supreme Court did not address itself to the validity of Act 109 as applied to nonsectarian nonpublic schools in Lemon I. It is clear that the constitutional principles which proscribe public aid as authorized under Act 109 to sectarian nonpublic schools have no bearing on public aid to nonsectarian nonpublic schools.
Moreover, the district court order, which was affirmed by the Supreme Court in Lemon II, only enjoined reimbursements to sectarian nonpublic schools. The court order prohibited payments
'. . . to any school which is church related, controlled by a religious organization or organizations, or has the purpose of propagating and promoting a particular religious faith and conducts its operations to fulfill that purpose.'
Lemon v. Kurtzman, 348 F.Supp. 300, 300 n. 1 (E.D.Pa.1972). If, as the Department contends, the entire Act was held unconstitutional, the district court would have proscribed payments to both sectarian and nonsectarian schools.
We conclude that the Supreme Court held Act 109 unconstitutional only as applied to sectarian nonpublic schools. 11 Thus, the validity of Act 109 as applied to nonsectarian nonpublic schools was not resolved by Lemon I or Lemon II.
The Department contends that Act 109 is not severable because it cannot achieve its legislative purpose if applied only to nonsectarian nonpublic schools. We do not agree and hold that Act 109 is severable and can be completely effectuated as applied to nonsectarian nonpublic schools.
The public policy of this Commonwealth favors severability. Section 1925 of the Statutory Construction Act 12 provides:
'The Provisions of every statute shall be severable. if any provision of any statute or the application thereof to any person or circumstances is held invalid, the remainder of the statute, and the application of such provision to other persons or circumstances, shall not be affected thereby, unless the court finds that the valid provisions of the statutes are so essentially and inseparably connected with, and so depend upon, the void provision or application, that it cannot be presumed the General Assembly would have enacted the remaining valid provisions without the void one; or unless the court finds that the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.'
1 Pa.C.S.A. § 1925 (Supp.1976).
We set out the principles to be followed in determining whether a statute is capable of a severable construction in Saulsbury v. Bethlehem Steel Co., 413 Pa. 316, 320, 196 A.2d 664, 666 (1964):
'(A) statute or ordinance may be partially valid and partially invalid, and . . . if the provisions are distinct and not so interwoven as to be inseparable . . . courts should sustain the valid portions.' (citations omitted)
Applying these principles, we find that the application of Act 109 to nonsectarian nonpublic schools is not 'so essentially and inseparably connected' with the application of Act 109 to sectarian nonpublic schools that it 'cannot be presumed (that) the (Legislature) would have enacted' Act 109 solely as applied to nonsectarian schools. As the Commonwealth Court noted, Act 109 is
13
Nor do we find that Act 109, as applied to nonsectarian nonpublic schools, is 'incomplete' or 'incapable of being executed in accordance with the legislative intent.' 14
Our conclusion that Act 109 is severable is buttressed by the inclusion of a severability clause in the Act itself. Section 5608 provides:
(emphasis added) 15
Clearly the Legislature envisioned the possibility that Act 109 would be partially invalidated, and indicated its intent that remaining valid applications be given effect. 16 Our case law establishes that there is a presumption in favor of severability where a statute contains a severability clause.
'(W)herever part of an act found to be unconstitutional can be severed from the rest of the statute without destroying its entirety of thought, a saving (severability) clause . . . creates a presumption that the Legislature would have passed the act notwithstanding its unconstitutional parts . . ..' 17
The provisions of Act 109 relating to sectarian nonpublic schools are not so essentially and inseparably connected to those relating to nonsectarian schools as to prevent a severable construction of Act 109. Therefore, the severability clause of Act 109 provides sufficient indication that the Legislature intended that Act 109 be...
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