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. 72459, 72620.
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. 828833.
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. 833835.
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 620622, 91
S.Ct., at 21142116.

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.
4

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.

* 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.
7

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 767768, 93
S.Ct., at 29622963. 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. 72620 has

suggested any way in which the present law might be distinguished from the
one in question in Nyquist. The intervenors in No. 72459, have, however,
proffered a distinction which deserves discussion because it serves to underline
the basis for our ruling in these cases. Intervenors suggest that New York's law
might be differentiated on the ground that because tuition grants there were
available only to parents in an extremely low income bracket (less than $5,000
of taxable income), it would be reasonable to predict that the grant would, in
fact, be used to pay tuition, rendering the parent a mere 'conduit' for public aid
to religious schools. Since Pennsylvania authorizes grants to all parents of
children in nonpublic schoolsregardless of income levelit is argued that no
such assumption can be made as to how individual parents will spend their
reimbursed amounts.7
10

Our decision, however, is not dependent upon any such speculation. Instead we
look to the substance of the program, and no matter how it is characterized its
effect remains the same. The State has singled out a class of its citizens for a
special economic benefit. Whether that benefit be viewed as a simple tuition
subsidy, as an incentive to parents to send their children to sectarian schools, or
as a reward for having done so, at bottom its intended consequences is to
preserve and support religion-oriented institutions. We think it plain that this is
quite unlike the sort of 'indirect' and 'incidental' benefits that flowed to sectarian
schools from programs aiding all parents by supplying bus transportation and
secular textbooks for their children. Such benefits were carefully restricted to
the purely secular side of church-affiliated institutions and provided no special
aid for those who had chosen to support religious schools. Yet such aid
approached the 'verge' of the constitutionally impermissible. Everson v. Board
of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947). In Lemon
v. Kurtzman, we declined to allow Everson to be used as the 'platform for yet
further steps' in granting assistance to 'institutions whose legitimate needs are
growing and whose interests have substantial political support.' 403 U.S., at
624, 91 S.Ct., at 2117. Again today we decline to approach or overstep the
'precipice' against which the Establishment Clause protects. We hold that
Pennsylvania's tuition grant scheme violates the constitutional mandate against
the 'sponsorship' or 'financial support' of religion or religious institutions. Walz
v. Tax Comm'n, 397 U.S. 664, 668, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697
(1970).8

II
11

Apart from the Establishment Clause issues central to this case, appellantintervenors in No. 72459 make an equal protection claim that was not
directly ruled on by the District Court. These intervenors are 12 parents whose

children attend nonpublic schools. Two parents, the Watsons, send their child to
a nonsectarian school while the remainder send their children to sectarian
schools. The District Court's final order enjoined the State Treasurer from
disbursing funds to any parents, irrespective of whether their children attended
sectarian or nonsectarian schools. The court considered and rejected the
argument that the state law should be treated 'as containing a separable
provision for aid to parents of children attending nonpublic schools that are not
church related.'9 Although the Act contained a severability clause,10 the court
reasoned that, in view of the fact that so substantial a majority of the law's
designated beneficiaries were affiliated with religious organizations, it could
not be assumed that the state legislature would have passed the law to aid only
those attending the relatively few nonsectarian schools.11
12

Appellants ask this Court to declare the provisions severable and thereby to
allow tuition reimbursement for parents of children attending schools that are
not church related. If the parents of children who attend nonsectarian schools
receive assistance, their argument continues, parents of children who attend
sectarian schools are entitled to the same aid as a matter of equal protection.
The argument is thoroughly spurious. In the first place, we have been shown no
reason to upset the District Court's conclusion that aid to the nonsectarian
school could not be severed from aid to the sectarian. The statute nowhere sets
up this suggested dichotomy between sectarian and nonsectarian schools, and to
approve such a distinction here would be to create a program quite different
from the one the legislature actually adopted. See Champlin Refining Co. v.
Corporation Commission of Oklahoma, 286 U.S. 210, 234, 52 S.Ct. 559, 564,
76 L.Ed. 1062 (1932); cf. Tilton v. Richardson, 403 U.S. 672, 683684, 91
S.Ct. 2091, 20982099, 29 L.Ed.2d 790 (1971) (plurality opinion). Even if the
Act were clearly severable, valid aid to nonpublic, nonsectarian schools would
provide no lever for aid to their sectarian counterparts. The Equal Protection
Clause has never been regarded as a bludgeon with which to compel a State to
violate other provisions of the Constitution. Having held that tuition
reimbursements for the benefit of sectarian schools violate the Establishment
Clause, nothing in the Equal Protection Clause will suffice to revive that
program. Cf. Brusca v. State Board of Education, 405 U.S. 1050, 92 S.Ct. 1493,
31 L.Ed.2d 786 (1972), aff'g 332 F.Supp. 275 (EDMo.1971).

III
13

In holding today that Pennsylvania's post-Lemon v. Kurtzman attempt to avoid

the Establishment Clause's prohibition against government entanglements with
religion has failed to satisfy the parallel bar against laws having a primary
effect that advances religion, we are not unaware that appellants and those who

have endeavored to formulate systems of state aid to nonpublic education may

feel that the decisions of this Court have, indeed, presented them with the
'insoluble paradox' to which Mr. Justice White referred in his separate opinion
in Lemon v. Kurtzman. 403 U.S., at 668, 91 S.Ct., at 2138.12 But if novel forms
of aid have not readily been sustained by this Court, the 'fault' lies not with the
doctrines which are said to create a paradox but rather with the Establishment
Clause itself: 'Congress' and the States by virtue of the Fourteenth Amendment
'shall make no law respecting an establishment of religion.' With that judgment
we are not free to tamper, and while there is 'room for play in the joints,' Walz
v. Tax Comm'n, supra, 397 U.S., at 669, 90 S.Ct., at 1412, the Amendment's
proscription clearly forecloses Pennsylvania's tuition reimbursement program.
14

Affirmed.

No. 72459, Sloan v. Lemon, is an appeal filed by the State Treasurer and by
12 intervening parents, two of whom are the Watsonsthe parents of a child
registered in a nonreligious, private school. No. 72620, Crouter v. Lemon, is
a separately docketed appeal initiated by another one of the intervenors.

Pa.Laws 1971, Act 92, Pa.Stat.Ann., Tit. 24, 57015709 (Supp.1973

1974) (the entire enactment is printed in an appendix to the District Court's
opinion, 340 F.Supp. 1356, 13651368).

Act 92, supra, 5704.

Id., 5702.

These findings are similar to the ones which supported the Pennsylvania
teacher-salary reimbursement law involved in Lemon. There the Court noted
that the Act was passed 'in response to a crisis that the Pennsylvania Legislature
found existed in the State's nonpublic schools due to rapidly rising costs.' 403
U.S., at 609, 91 S.Ct., at 2109. The Court held that the State's interest in
enhancing 'the quality of the secular education in all schools covered by the
compulsory attendance laws' was clearly legitimate and 'must be therefore
accorded appropriate deference.' Id., at 613, 91 S.Ct., at 2111.

Since the grants in this case are not limited to reimbursing only a percentage of
the tuition bill, the argument could not be made here that the law contains any
'statistical guarantee of neutrality,' Nyquist, 413 U.S., at 787, 93 S.Ct., at 2972.

Brief for Appellants Diaz et al. 2324. It was also alleged, as a ground of
distinction between the Pennsylvania and New York tuition reimbursement

grants, that there was less likelihood of political divisiveness under the
Pennsylvania scheme because it is financed out of a self-perpetuating fund
derived from the state cigarette tax. Thus, it is contended that no annual
appropriations are required and there will be less likelihood of divisive political
pressure for increased grants and expanded aid. We addressed the problem of
potential political divisiveness in Part III of our opinion in Nyquist, 413 U.S., at
794798, 93 S.Ct., at 29762978. At most, the difference here is one in
degree and one not likely to diminish perceptibly over the long term the
inevitable demands for increased and expanded aid.
8

Appellants have also sought to distinguish Nyquist on the ground that

Pennsylvania's legislation is more carefully drafted to avoid excessive
administrative entanglements; the program is administered by an independent
authority rather than by the Commissioner of Education, and its funds are not
derived from the general revenues available for education but from a separate
fund. Brief for Appellant Diaz et al. 24. Since Pennsylvania's law falls under
the second aspect of our test because its effect, inevitably, is to advance religion
we need not address this claimed distinction.

Order of District Court, dated June 20, 1972, scheduling oral arguments on
plaintiffs' summary judgment motion and outlining the questions to be argued
at that time, reprinted in App. 84a85a.

10

'Section 10. Severability.If a part of this act is invalid, all valid parts that are
severable from the invalid part remain in effect. If a part of this act is invalid, in
one or more of its applications, the part remains in effect in all valid
applications that are severable from the invalid applications.' Pa.Laws 1971,
Act 92. (Emphasis supplied.)

11

Final Order of District Court, dated July 21, 1972, permanently enjoining
enforcement of the Act, reprinted in App. 87a.

12

See also Lemon v. Kurtzman, 403 U.S., at 640, 91 S.Ct., at 2124 (Douglas, J.,
concurring); Lemon v. Kurtzman, 411 U.S. 193, 203 n. 3, 93 S.Ct. 1463, 1470,
36 L.Ed.2d 151 (1973) (Lemon II).