Dissenting Opinion by
Judge Rogers :I respectfully dissent.
The First School, a nonpublic nonsectarian school, seeks reimbursement for expenditures for teachers’ salaries, text books and other instructional materials pursuant to the Act of June 19, 1968, P.L. 232, 24 P.S. §5601 et seq. (Act 109). The Supreme Court held Act 109 to be unconstitutional as involving an excessive entanglement of government and religion, emphasizing that 96% of the nonpublic school pupils sought to be benefited were enrolled in church schools. Lemon v. Kurtzman, 403 U.S. 602 (1971), (Lemon I). The Supreme Court remanded the case to the District for the issuance of appropriate orders. The District Court enjoined future payments under the Act to nonpublic sectarian schools but permitted the State to reimburse nonpublic sectarian schools for services provided before the Supreme Court’s decision at 403 U.S. 602 (1971). The Supreme Court affirmed this order. Lemon v. Kurtzman, 411 U.S. 192 (1973), {Lemon II). While the District Court’s order deals only with payments to sectarian schools, neither that order nor either Supreme Court decision says anything about reimbursement to nonsectarian schools.
In Sloan v. Lemon, 413 U.S. 825 (1973), the Supreme Court of the United States struck down the Act of August 27, 1971, P.L. 358, as amended, 24 P.S. §5701 et seq. (Act 92), which provided tuition reimbursements to parents sending their children to nonpublic schools.
The majority has concluded that the provisions of the Act 109, declared to be unconstitutional by the United *342States Supreme Court, are severable and that nonpublic nonsectarian schools may continue to be reimbursed for instructional expenses. My disagreement with the majority stems from my conclusion that “the valid provisions of . . . [Act 109] . . . are so essentially and unseparably connected with, and so depend upon, the void provisions that it cannot be presumed that the General Assembly would have enacted the remaining valid provisions without the void one.” Statutory Construction Act of 1972, 1 Pa. C.S. §1925. The named objects of State bounty provided by Act 109 are “nonpublic schools,” and no distinction between nonpublic sectarian schools on the one hand, and nonpublic, nonsectarian schools on the other, appears anywhere in the Act. The history of Lemon v. Kurtzman, (Lemon I and II), as mentioned, reveals that 96% of the students attending nonpublic schools in Pennsylvania attend sectarian schools. Clearly the impetus for the enactment of Act 109 and the other Acts of the General Assembly providing public support to nonpublic schools derived entirely from the interest of persons who send their children to nonpublic sectarian schools. It is simply unrealistic to presume that the Legislature would have provided aid to schools educating but four per cent of the nonpublic school students of the Commonwealth, leaving without benefit the schools which educate the remaining 96% of such children, whose understandable desire to have public subsidy caused the Act to be passed.
Further, in Sloan v. Lemon, 413 U.S. 825 (1973), the Supreme Court of the United States was asked to find the provisions of the Act 92, providing tuition reimbursement, to be severable as between the parents of students attending sectarian and those attending nonsectarian schools.
The court declared:
“Appellants ask this Court to declare the provisions severable and thereby to allow tuition reim*343bursement for parents of children attending schools that are not church-related. If the parents of children who attend nonseetarian 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. . . . 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.” 413 U.S. at 834. (Emphasis supplied.) Since, as I have mentioned, Act 109 “nowhere sets up
this suggested dichotomy between sectarian and nonsectarian schools, and to approve such a distinction would be to create a program quite different from the one the Legislature actually adopted,” the appellant’s argument in this case is also, to use the Supreme Court’s word, spurious.
I would affirm the Secretary of Education’s decision.
Judge Wilkinson joins in this dissent.