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lemon v kurtzman dissenting



We repeated the same idea in McCollum v. Board of Education, Nevada Orphan Asylum v. Hallock, 16 Nev. 373 (1882); Synod of Dakota v. State, 2 S.D. It is a line which the Court has consistently sought to mark in its decisions expounding the religious guarantees of the First [p643] Amendment. [ The court granted appellees' motion to dismiss the complaint for failure to state a claim for relief.   By the same token, since the constitutionality of Act 109 is now settled, there is no further potential for divisive political conflict among the citizens and legislators of Pennsylvania over the desirability or degree of direct state aid to sectarian schools under Act 109. 153 would strike down the 20-year "period of Federal interest," 20 U.S.C. The happenstance of litigation is no criterion for dispensing these unconstitutional subsidies. 392 Brief for Appellants Lemon et al. 403 366 300, 304 n. 6. Pennsylvania has adopted a statutory program that provides financial support to nonpublic elementary and [p607] secondary schools by way of reimbursement for the cost of teachers' salaries, textbooks, and instructional materials in specified secular subjects. [411 With respect to Pennsylvania, the Court, accepting as true the factual allegations of the complaint, as it must for purposes of a motion to dismiss, would reverse the dismissal of the complaint and invalidate the legislation. [5] Although the controversy over religious exercises in the public schools continued into this century, Schempp, 374 U.S. at 268-277 (BRENNAN, J., concurring), the opponents of subsidy to sectarian schools had largely won their fight by 1900. However, appellants abandoned the request for preliminary relief in a letter of August 28, 1969, from their counsel to Judge Troutman. Footnote 2 Though both provide economic assistance, they do so in fundamentally different ways. [11], Before turning to the decisions of this Court on which this argument is based, it is important to recall again the history of subsidies to sectarian schools. That Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. U.S. 943 It reaches this result although sectarian institutions undeniably will obtain substantial benefit from federal aid; without federal funding to provide adequate facilities for secular education, the student bodies of those institutions might remain stationary, or even decrease in size, and the institutions might ultimately have to close their doors. . Hence, I would reverse the judgment of the District Court and remand the case for trial, thereby holding the Pennsylvania legislation valid on its face but leaving open the question of its validity as applied to the particular facts of this case. Approximately one month later, appellants publicly declared their intention of challenging the constitutionality During these visits, class schedules and course descriptions contained in the school catalog are analyzed to ascertain that nothing in the nature of sectarian instruction is scheduled in any area constructed with the use of Federal funds. It emphasizes the role and importance of the teacher in parochial schools: The prime factor for the success or the failure of the school is the spirit and personality, as well as the professional competency, of the teacher. We said in unequivocal words in Everson v. Board of Education, The States may also furnish transportation for students, Everson v. Board of Education, 330 U.S. 1 (1947), and books for teaching secular subjects to students attending parochial and other private as well as public schools, Board of Education v. Allen, 392 U.S. 236 (1968); we have also upheld arrangements whereby students are released from public school classes so that they may attend religious instruction. Appellants would have state officials stay their hands until newly enacted state programs are "ratified" by the federal courts, or risk draconian, retrospective decrees should the legislation fall. Freund, Comment, Public Aid to Parochial Schools, 82 Harv. 83; N.J.Const., Art. See also Board of Education v. Allen, 392 U. S. at 249 (HARLAN, J., concurring) ; Abington School District v. Schempp, 374 U. S. 203, 307 (1963) (Goldberg, J., concurring). Lemon v. Kurtzman. We deal with the normal situation that governs judicial decisions.

Some relationship between government and religious organizations is inevitable. First, they provide secular education, and second, they teach the tenets of a particular sect. Given the dangers of self-censorship in such a situation, I cannot agree that the dangers of [p661] entanglement are insubstantial.

367 . Although no facts have been developed in this respect [p624] in the Pennsylvania case, it appears that such pressures for expanding aid have already required the state legislature to include a portion of the state revenues from cigarette taxes in the program.
The only context in which the Court in Allen employed the distinction between secular and religious in a parochial school was to reach its conclusion that the textbooks that the State was providing could and would be secular.

No one in these cases questions the constitutional right of parents to satisfy their state-imposed obligation to educate their children by sending them to private schools, sectarian or otherwise, as long as those schools meet minimum standards established for secular instruction.

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