Rhoades v. Abington Township School District

226 A.2d 53, 424 Pa. 202, 1967 Pa. LEXIS 765
CourtSupreme Court of Pennsylvania
DecidedJanuary 17, 1967
DocketAppeals, 175 and 176, Miscellaneous Docket 14
StatusPublished
Cited by37 cases

This text of 226 A.2d 53 (Rhoades v. Abington Township School District) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rhoades v. Abington Township School District, 226 A.2d 53, 424 Pa. 202, 1967 Pa. LEXIS 765 (Pa. 1967).

Opinions

Opinion by

Me. Justice Musmanno,

The Act of June 15, 1965,1 amending §1361 of the Public School Code of 1949,2 provides, inter alia: “When provision is made by a board of school directors for the transportation of resident pupils to and from the public schools, the board of school directors shall also make provision for the free transportation of pupils who regularly attend nonpublic elementary and high schools not operated for profit.”

On August 30, 1965, Brenard G. Rhoades and five others filed a suit in equity in Montgomery County, averring that the Act of June 15, 1965, known as Act No. 91, was unconstitutional, unlawful and invalid, and asking that the court enjoin the defendant School District of Abington Township from entering into any contract under the indicated legislation.

On September 1, 1965, Betty J. Worrell filed a similar suit in Delaware County against the school directors and officers of Rose Tree Union School District. The Attorney General of the Commonwealth petitioned this Court to take original jurisdiction in the two equity actions and we issued certiorari to bring the actions before us for disposition. The Attorney General intervened in both actions, so did other parties, all of whom filed answers and briefs. All counsel participating in the argument, both orally and by printed brief, have presented their positions ably and vigorously-

The issue is one on which adversaries feel deeply, although in reality the opposing points of view do not bristle with as much contention as might at first appearance seem likely. The plaintiffs 3 and those who [206]*206support their position see in Act 91 an infringement on the First Amendment to the Federal Constitution and to Article I, §3; Article III, §§17 and 18; and Article X, § §1 and 2 of the Pennsylvania Constitution.

The purpose of Act 91, as announced in its title, is to provide for the “health, wealth and safety of the children of the Commonwealth,” The phrase “health, wealth and safety” is not to be treated lightly or as a superfluity. “The Legislature cannot be deemed to intend that its language be superfluous and without import.” (Daly v. Hemphill, 411 Pa. 263.)

The larger number of schools in Pennsylvania are located so far away from the homes of the pupils who attend them that the pupils are required either to walk long distances or to make use of vehicular transportation. In recent years the foot traveler, because of the volume of motor traffic which more and more is approaching the grim appearance of a foreign invasion, is in constant jeopardy of death or physical disablement, as he proceeds, warily or carefree over the highways of the nation. And those who ride in private cars can never be certain, because of the ever-increasing violence and number of collisions, that they will arrive at their destinations with only the ailments they enjoyed when they started on their journeys.

Testimony before a United States Senate Committee advanced the dire prediction that: “It seems probable that over the next 5 years we will kill on the highways of this country as many people as we lost to enemy action in all four years in World War II. In the next decade, we can expect to kill more than 500,000 people and injure about 40 million.” (89th Cong. 2d Sess. 112 Cong. Rec. 6576.)

In view of the peril hovering over our streets and roads like a miasmatic fog, those charged with concern [207]*207for the safety of children are duty bound to devise methods and means for saving the little travelers from harm on their way to and from school. Obviously the manner in which to provide these youthful wayfarers with a fair measure of protection against highway mishap is to keep them pedally off the roads and to transport them in vehicles so formidably constructed that they may ward off and parry, to the maximum extent possible, aggression from other vehicles. The school bus with its large heavy wheels and steel fabricated body seems to be the answer to the worrisome problem. Pennsylvania Secretary of Public Welfare, in testifying on House Bill 381 (later to become Act 91) before the Senate Education Committee, said: “. . . school bus transportation clearly involves the safety and health of our children. The busing of school children is for their protection against hazards of the roadways and of traffic, against dangers occasioned by exposure to weather, against evils of child molestation.” 4

He stated further that “with respect to injuries,” a person is five times as safe in a school bus as in a car. “With respect to death,” a person is ten times as safe in a school bus as in a car. In support of this statement, he cited statistics: “In 1963, there were 2.3 deaths per 100,000,000 miles, in cars, as compared to .2 deaths, per 100,000,000 miles in school buses.”

The need for the collective motorized transportation of school children is thus as apparent as a washed-away bridge. The opponents of Act 91 do not contest the desirability, indeed even the imperativeness, of transporting children to school by means of school buses, but argue that they may not be used to ferry children attending nonpublic schools which, of course, include parochial schools. They point to the First [208]*208Amendment to the Constitution of the United States which declares, inter alia, “Congress shall make no law respecting an establishment of religion,”5 and argue that Act 91 offends against it.

Despite the wondrous flexibility of the English language it is still difficult to see how one can conclude that, placing children on a school bus establishes a religion. And even if the children are transported to a school which, in addition to teaching state-approved subjects, offers guidance in the world of faith, this still does not establish a religion. Our whole body of school law is predicated on the proposition that once children are served educationally according to State criteria, their extracurricular activities cannot adversely affect the State, constitutionally. Indeed, the Public School Code specifically embraces the concept of nonpublic schools, the title explaining that the law relates to “the public school system, including certain provisions applicable as well to private and parochial schools.”

In his concurring opinion in the case of McGowan v. Maryland, 366 U.S. 420, 467, Justice Frankfurter said: “It was on the reasoning that parents are also at liberty to send their children to parochial schools which meet the reasonable educational standards of the State . . ., that this Court held in the Everson case that expenditure of public funds to assure that children attending every kind of school enjoy the relative security of buses, rather than being left to walk or hitchhike, is not an unconstitutional ‘establishment’, even though such expenditure may cause some children to go to parochial schools who would not otherwise have gone.”

[209]*209Pennsylvania State laws compel all children up to 18 years of age to attend school—not public school, but any school so long as it teaches an approved curriculum and meets other State requirements. The State awards to nonpublic school students the same scholastic credits as those which are earned by public school students.

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Bluebook (online)
226 A.2d 53, 424 Pa. 202, 1967 Pa. LEXIS 765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rhoades-v-abington-township-school-district-pa-1967.