Sloan v. Lemon Crouter v. Lemon 8212 459, 72 8212 620

• Decision Date: 25 June 1973
• Docket Number: Nos. 72,s. 72
• Parties: Grace SLOAN, as State Treasurer of the Commonwealth of Pennsylvania, et al., Appellants, v. Alton J. LEMON et al. Henry E. CROUTER, Appellant, v. Alton J. LEMON et al. —459, 72—620
• Court: U.S. Supreme Court

413 U.S. 825

93 S.Ct. 2982

37 L.Ed.2d 939

Grace SLOAN, as State Treasurer of the Commonwealth of Pennsylvania, et al., Appellants,

v Alton J. LEMON et al.

Henry E. CROUTER, Appellant,

v. Alton J. LEMON et al.

Nos. 72—459, 72—620.

Argued April 16, 1973.

Decided June 25, 1973.

Syllabus

Subsequent to Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745, 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 90% 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, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948. Pp. 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. 833—835.

340 F.Supp. 1356, affirmed.

Israel Packel, Harrisburg, Pa., for appellant Grace Sloan, etc.

William B. Ball, Harrisburg, Pa., for appellants Jose Diaz and others.

Henry T. Reath, Philadelphia, Pa., for appellant Henry E. Crouter.

Theodore R. Mann, Philadelphia, Pa., for appellees.

Mr. Justice POWELL delivered the opinion of the Court.

On June 28, 1971, this Court handed down Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745, 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. 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 620—622, 91 S.Ct., at 2114—2116.

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 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 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.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, 93 S.Ct. 958, 35 L.Ed.2d 268 (1973). We have today held in Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948, 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'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. 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.'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.'⁴ We certainly do not question now, any more than we did two Terms ago in Lemon v. Kurtzman,⁵ the reality and legitimacy of Pennsylvania's secular purposes. See Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S., at 773, 93 S.Ct., at 2965.

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. 413 U.S., at 767—768, 93 S.Ct., at 2962—2963. 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 610, 91 S.Ct., at 2110.

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 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,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...