I would grant this petition for certiorari and put the case down for oral argument. It involves alleged violations of the First Amendment which are applicable to the States by reason of the Fourteenth Amendment; and the violations, on the papers before us, seem to me to be of the kind that we struck down in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745.
What happened was this: The school district made application to the State for financial aid in instructing students in remedial reading and remedial mathematics. The application stated that the school district was leasing the facilities of the Cedar Catholic High School as a place to conduct this project. The students from both the public and the private school would attend these classes.
The lease provided that no objects, pictures, or other articles having a religious connotation would be visible in the classroom.
This action was instituted in the Nebraska Courts when the state authorities refused to undertake the project. The Supreme Court of Nebraska, by a divided vote, approved the project over the objection that it violated the First Amendment. 188 Neb. 1, 195 N.W.2d 161. Under the project as approved, state funds will be channeled into this parochial school. In this case as in Lemon v. Kurtzman the State is supplying funds for instruction in parochial schools leading to a degree of entanglement between government and religion which runs counter to our opinions.
If a State can finance two courses in a parochial school, there is no reason and logic why it cannot finance the teaching and learning of an entire curriculum. In Sanders v. Johnson, 403 U.S. 955, 91 S. Ct. 2292, 29 L. Ed. 2d 865, we affirmed a district court decision (319 F. Supp. 421) that held invalid a program whereby the State had contracted with parochial schools for the 'purchase' by the State of 'secular educational services' to be supplied to the children. The contract in that case is different only in scope and in form from the present one. There is no provision in the lease for surveillance of the use of the premises except for making sure that no objects, pictures, or other articles having a religious connotation are present in the classrooms. Yet those teaching in a parochial school may be members of that faith or under compelling pressures. In light of the command of the First Amendment, the State in each case must see that all courses of instruction are confined to the 'secular' area and do not trench on religious tenets or doctrine. To police this statutory standard would require the exercise of broad powers of surveillance by the State. As stated by the District Court in the Sanders case:
'In the present case, the parochial school function which is funded is the entirety of secular 'instruction' itself. In order to confine assistance to this rather amorphous use, the Act would introduce state supervision into virtually every nook and cranny of a school's administration. Perhaps this is logically necessary. If a conscientious public official is to be certain that tax dollars are spent only for activities which are proper secular subcategories of the school's instruction, he must engage in a program of inspecting and monitoring which even the copious specification of the Act and its open-ended supplementary regulations only begin to suggest.' 319 F. Supp. 431.
The District Court went on to say:
'. . . the detailed plan which the legislature has enacted to separate, purchase, promote, and regulate the contents of secular instruction goes well beyond a theoretical subsidy and brings the potentiality of mutually-damaging involvement to life. Public officials must investigate curricula, materials, and manner of teaching in detail, case by case; oversee the training of teachers; and audit financial records. By doing so, they might disentangle the last thread of religious doctrine from all secular instruction; but by this very process they would certainly enmesh the state in continuous conflict with churches over the effectiveness with which governmental investigating and policing machinery would be operated.' Id., at 432.
The necessity of surveillance is necessarily implied.
Denial of certiorari here does not appear consistent with our affirmance of Sanders. These considerations lead me to vote to take this case and put it down for oral argument so that the entire plan may be carefully examined against the requirements of the First Amendment.
Mr. Justice BRENNAN.
The situation, as I see it, is not that portrayed in my Brother DOUGLAS' dissent. Hartington, Nebraska, is a small town where neither the public nor the parochial schools offered remedial reading and remedial mathematics courses. The School District decided to avail itself of the benefits of the federally financed courses in such subjects provided under the Federal Elementary and Secondary Education Act of 1965 and submitted a grant proposal, as required by that Act, adequate to provide the courses for all educationally deprived children within the school districtâ91 public school and 48 parochial school children. But there was a problem of space because there were no available classrooms in the public schools. There were, however, two unused classrooms in the Hartington Cedar Catholic High School and the School District proposed to lease one classroom full time and the second classroom half time at an annual rent of $200 for the full-time classroom and $100 for the half-time classroom. The lease provided that the classrooms would be used only for carrying on the project under the Federal Elementary and Secondary Education Act of 1965; that the Hartington School District would have full control over the classrooms and the educational programs; and that no objects, pictures, or other articles having a religious meaning or connotation would be in the classrooms. The lease represented the complete extent of the relations between the School District and the parochial school. There is not the slightest suggestion that this was a subterfuge to make a subsidy to the