Lemon v. Kurtzman (411 U.S. 192)

Following this Court's invalidation in Lemon v. Kurtzman, 403 U.S. 602 (Lemon I) of Pennsylvania's statutory program to reimburse nonpublic sectarian schools (hereafter schools) for secular educational services, the District Court on remand enjoined any payments under the program for services rendered after Lemon I, but permitted Pennsylvania to reimburse the schools for services performed prior to that decision. Appellants challenge the scope of this decree.

Held: The judgment is affirmed. Pp. 193-209.

348 F.Supp. 300, affirmed.

THE CHIEF JUSTICE, in an opinion joined by MR. JUSTICE BLACKMUN, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST concluded that the District Court did not abuse its discretion in permitting Pennsylvania to reimburse the schools for services rendered and costs incurred in reliance on the statutory scheme prior to its invalidation in Lemon I. Pp. 197-209.

(a) An unconstitutional statute is not absolutely void, but is a practical reality upon which people rely. Courts recognize that reality. Pp. 197-199.

(b) A trial court has wide latitude in shaping an equitable decree and reaching an accommodation between public and private needs. Pp. 200-201.

(c) The contested reimbursement will not contravene the constitutional principle of Lemon I of avoiding the ongoing entanglement of church and state, since only a final, ministerial post-audit is involved and no further detailed state surveillance of the schools is required. At the same time, however, supervision already conducted by Pennsylvania officials insures that the proposed reimbursement will not be used for sectarian purposes. The proposed payment reflects only the schools' expenses incurred in expectation of reimbursement. Pp. 201-202.

(d) The schools relied in good faith on the state statute, which invited the contracts and authorized reimbursement for past services; and appellants, in self-styled "sensible recognition of the practical realities of the situation," may well have encouraged such reliance by the schools by not moving to have the payments enjoined before the contract services had been performed. Pp. 203-205.

(e) The schools could have not anticipated the Lemon I holding, which involved resolution of an issue of first impression that "was not clearly foreshadowed." Pp. 206-207.

(f) A State and those with whom it deals are not to be subjected to harsh, retrospective relief merely because they act on the basis of presumptively valid legislation, in the absence of contrary judicial direction. Pp. 207-209.

MR. JUSTICE WHITE concurred in the judgment.

BURGER, C.J., announced the judgment of the Court and an opinion in which BLACKMUN, POWELL, and REHNQUIST, JJ., joined. WHITE, J., concurred in the judgment. DOUGLAS, J., filed a dissenting opinion, in which BRENNAN and STEWART, JJ., joined, post, p. 209. MARSHALL, J., took no part in the consideration or decision of the case.

David P. Bruton argued the cause for appellants. With him on the briefs were Melvin L. Wulf, Sanford J. Rosen, and Franklin C. Salisbury.

William B. Ball argued the cause for appellees. With him on the brief for appellee Commonwealth of Pennsylvania were J. Shane Creamer, Attorney General, Samuel Rappaport, Joseph G. Skelly, James E. Gallagher, Jr., C. Clark Hodgson, Jr., and William D. Valente. Henry T. Reath filed a brief for appellee Pennsylvania Association of Independent Schools.