concurring.
Section 1361 of the Pennsylvania Public School Code of 1949 (Pa. Stat. Ann., Tit. 24, § 13-1361 (Purdon 1962)), as *977amended by 1972 Pa. Laws No. 372,* authorizes a public school district of the Commonwealth of Pennsylvania to provide free transportation for its kindergarten, elementary, and secondary school pupils, and also to provide free transportation to and from any point in the Commonwealth for educational field trips. The statute states, in addition, that when such transportation is provided for public school pupils, the district “shall also make identical provision” for pupils who attend nonprofit, nonpublic schools located within the district or outside the district at a distance not exceeding 10 miles.
*978Appellant district challenged the Pennsylvania statute as violative of the Fourteenth Amendment’s Equal Protection Clause and of the First Amendment’s Establishment Clause. The Commonwealth Court of Pennsylvania upheld the statute against that challenge. 38 Pa. Commw. 290, 392 A. 2d 912 (1978). The Supreme Court of Pennsylvania denied a petition for allowance of an appeal.
I join the Court’s dismissal of this case only on the specific assumption that the issue of the constitutionality of the field-trip provision of the Pennsylvania statute is not before us. The absence of that issue, for me at least, is not automatically apparent from the jurisdictional statement and the motion to dismiss that have been filed with this Court, or from the summary opinion of the Commonwealth Court. That opinion, however, states: “No issue of law or fact distinguishes this case from earlier eases decided by this Court and upholding the Secretary’s interpretation of the Act and the Act’s constitutionality as so interpreted.” 38 Pa. Commw., at 291, 392 A. 2d, at 912. That court’s “earlier cases” cited are School Dist. of Pittsburgh v. Commonwealth Dept. of Ed., 33 Pa. Commw. 535, 382 A. 2d 772 (1978); Springfield School Dist. v. Commonwealth Dept. of Ed., 35 Pa. Commw. 71, 384 A. 2d 1049 (1978); and Pequea Valley School Dist. v. Commonwealth Dept. of Ed., 36 Pa. Commw. 403, 387 A. 2d 1022 (1978).
On appeal to the Supreme Court of Pennsylvania, those three decisions of the Commonwealth Court were affirmed by a divided vote in a single opinion. Springfield School Dist. v. Department of Ed., 483 Pa. 539, 397 A. 2d 1154 (1979). In its opinion, the Supreme Court of Pennsylvania construed the basic free-transportation provision of the Pennsylvania statute in such a way as to alleviate federal constitutional concern. It specifically noted, however, that the field-trip provision of the Act “is not before us in these appeals,” and that *979the constitutionality of the field-trip provision need not be considered. Id., at 553, n. 6, 397 A. 2d, at 1161, n. 6. The court went on to observe, ibid., that the Attorney General of Pennsylvania has ruled the field-trip provision of the Act unconstitutional in its application to sectarian nonpublic schools. 1977 Op. Atty. Gen. No. 15.
In the present case I therefore assume that when the Commonwealth Court observed that no issue of law or fact distinguished this case from its cited “earlier cases,” it necessarily means that the constitutionality of the field-trip provision was not at issue. It is only on that assumption that I join the Court in its dismissal of the appeal, for in Wolman v. Walter, 433 U. S. 229, 252-255 (1977), the Court flatly ruled that field-trip reimbursements to parochial schools are violative of the First Amendment. The continuing vitality of Wolman as controlling precedent in this area was recognized in Committee for Public Education v. Regan, 444 U. S. 646, 654 (1980).
“The board of school directors in any school district may, out of the funds of the district, provide for the free transportation of any resident pupil to and from the kindergarten, elementary school, or secondary school in which he is lawfully enrolled, provided that such school is not operated for profit and is located within the district boundaries or outside the district boundaries at a distance not exceeding ten miles by the nearest public highway, . . . and to and from any points in the Commonwealth in order to provide field trips for any purpose connected with the educational pursuits of the pupils. When provision is made by a board of school directors for the transportation of public school pupils to and from such schools or to and from any points in the Commonwealth in order to provide field trips as herein provided, the board of school directors shall also make identical provision for the free transportation of pupils who regularly attend nonpublic kindergarten, elementary and high schools not operated for profit to and from such schools or to and from any points in the Commonwealth in order to provide field trips as herein provided.” Pa. Stat. Ann., Tit. 24, § 13-1361 (Purdon Supp. 1979-1980).