OFFICIAL OPINION No. 22

OFFICIAL OPINION No. 22 Nonpublic schools-Public School Code-School lunch program. 1. The nonprofit school lunch program has a public welfare purpose which is not a function in any sense associated with religion. 2. The Department of Education may administer a school lunch program for nonpublic schools, using Federal funds designated for that purpose. Honorable John C. Pittenger Secretary Department of Education Harrisburg, Pennsylvania Dear Secretary Pittenger: Harrisburg, Pa. March 20, 1973 You have asked whether the Department of Education may administer a school lunch program for nonpublic schools, using Federal funds designated for that purpose. You are advised that the Department of Education may administer such a program, even though it includes children attending private and parochial schools. The authority to administer a school lunch program is found in Section 1337 of the School Code, 24 P.S. 13-1337. The main provisions of this statute are as follows: " (a) Definitions--For the purpose of this section- 'school lunch program' means a program under which lunches are served by any school on a nonprofit basis to children in attendance, including any such program under which a school receives assistance out of funds appropriated by the Congress of the United States. (Emphasis added. ) "(b) Expenditure of Federal Funds-The Department o~ Public Ins.truction is hereby authorized to accept and direct the disbursement of funds appropriated by any act of Congress, and appropriated to the states for use in connection with school lunch programs .... ' OPINIONS OF THE ATTORNEY GENERAL " ( c). Administr~tion of Program-The Department of P1:1bhc Instruct10n may enter into such agreements with any agency of the Federal Government, with any board of school directors, or with any other agency or person, prescribe such regulations ... and take such other action as it may deem necessary to provide for t~e establishment, maintenance, operation, and expan- s10n of any school lunch program .... " 53 ~owhere in the statute is administration of the program re- stricted to the public schools. Such a restriction is clearly con- trary to the intent of the statute since the program is for "any school", and the Department "may enter into agreements .. . with any other agency or person." The question of providing aid to children attending nonpublic schools has been raised many times by provisions in the School Code. At present, State aid is given to children, without distin- guishing between public and nonpublic schools, for medical, dental and nurse services (Section 1401 et seq.); driver safety (Section 1519); food and mi1k supp1y (Section 13;)5); tuu1011 and maintenance of the blind, deaf, and cerebral palsied child- ren (Section 1376); school bus transportation to schools not operated for profit (Section 1361); and the providing of services by the intermediate units (Section 914-A). The Official Opinion No. 257, January 9, 1963, of the Attorney General advised that under Section 1401 et seq. of the School Code, providing for health services, that local school districts may expand local tax funds to supplement State reimburse- ments in providing school health services to private and paro- chial school children. Attorney General David Stahl said: "The protection and preservation of the health of school children is clearly a proper governmental func- tion in the nature of public welfare legislation, whether the children attend public, private or parochial schools, and the use of tax funds for this purpose cannot suc- cessfully be attacked on constitutional grounds." In the case of Rhoades v. School District of Abington Town- ship, 226 A. 2d 53, 424 Pa. 202 ( 1967), upholding t~~ constitu- tionality of Act 91 of 1965~ 24 P.S. 13-1?61, author~zmg school bus transportation for children attendmg parochial schools, Justice Roberts in his concurring opinion said: "Thus what is ultimately persuasive to me in the in- stant case is not only that Act 91 is a welfare measure, but also the fact that the transportation of students is, in the phrase of Everson [Everson v. the Board of Edu- cation 330 U.S. 1 ( 194 7)] 'so separate and indisputably marke'd off' from functions in any sense associated with religion." 54 OPINIONS OF THE ATTORNEY GENERAL The same issues that authorize the above mentioned legis- lation also apply to the Department of Education's authority to administer and regulate a nonprofit school lunch program for nonpublic schools. The nonprofit school lunch program has a public welfare purpose--namely seeing that the children of the Commonwealth receive low cost, well balanced nutritional meals-and it is not a function in any sense associated with religion. Therefore, the Department of Education may receive Federal funds and administer the nonprofit school lunch program for nonpublic schools on whatever terms and conditions it deems necessary. Any contrary opinions herebefore provided to the Department of Education on this subject are hereby overruled. Sincerely yours, MARK P. WIDOFF Deputy Attorney General ISRAEL P ACKEL Attorney General