APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Powell, J., delivered the opinion of the Court, in which Douglas, Brennan, Stewart, Marshall, and Blackmun, JJ., joined. Burger, C. J., filed a dissenting opinion, in which White and Rehnquist, JJ., joined, ante, p. 798. White, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined, ante, p. 813.
MR. JUSTICE POWELL delivered the opinion of the Court.
On June 28, 1971, this Court handed down Lemon v. Kurtzman, 403 U.S. 602, 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 non-religious activities of the schools would foster "excessive entanglement" between government and religion. Id., at 620-622.
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 were 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.*fn1 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 (1973). We have today held in Committee for Public Education & Religious Liberty v. Nyquist, ante, p. 756, 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"*fn2 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 ...