Nebraska State Board of Education v. School District of Hartington/Concurrence Brennan

by William J. Brennan

[p924] MR. JUSTICE BRENNAN.

The situation, as I see it, is not that portrayed in my Brother DOUGLAS' dissent. Hartington, Nebraska, is a small town^[1] where neither the public nor the parochial schools offered remedial reading and remedial [p925] mathematics courses.^[2] 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, 79 Stat. 27, and submitted a grant proposal, as required by that Act, adequate to provide the courses for all educationally deprived children within the school district—91 public school and 48 parochial school children. But there was a problem of space because there were no available classrooms in the public schools.^[3] 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 [p926] parochial school, or anything except an arrangement motivated solely by the lack of space in the public schools. Thus, the school district would have no part whatever in the curriculum of the parochial school either by way of subsidy of its costs through financing of teaching or otherwise. The remedial reading and remedial mathematics courses would operate completely independently of that curriculum and of the Catholic school administration. My Brother DOUGLAS relies on Sanders v. Johnson, 403 U.S. 955 (1971), aff'g 319 F.Supp. 421 (Conn. 1970). The situation there is poles apart from this. That was an undisguised subsidy in the form of "purchasing" "secular educational services" from parochial schools and was patently invalid under our decision in Lemon v. Kurtzman, Earley v. DiCenso, and Robinson v. DiCenso, 403 U.S. 602 (1971). I have heretofore expressed my view that the First Amendment does not render unconstitutional "every vestige, however slight, of cooperation or accommodation between religion and government." Abington School District v. Schempp, 374 U.S. 203, 294 (1963) (concurring opinion). The accommodation involved in this case would not trespass beyond permissible bounds. For this reason, I join in denying the petition for certiorari.

Notes

1. The population of Hartington, according to the 1970 census, is 1,581. The Hartington public schools had a total enrollment of 572 pupils during the 1969-1970 school year.
2. The lease agreement states that:

   "[T]he above described project for said courses does not and will not duplicate or replace, either in whole or in part, any course of study in the present curricula of either the public schools or the private schools in Hartington and its environs...."

3. The Superintendent of the Hartington Public Schools, in a letter to the State Board of Education, indicated that a consolidation of rural school districts into the Hartington School District had increased total enrollment in Hartington's public schools from 394 students in 1967-1968 to 572 students in 1969-1970. As a consequence, the school district was making preparations to conduct three kindergarten classes in the city auditorium. R. 10.