RELEASED TIME

Twice, in mccollum v. board of education (1948) and again in zorach v. clausen (1952), the Supreme Court considered first amendment challenges to the practice of releasing public school pupils from their regular studies so that they might participate in programs for religious instruction.

The first such program, in Gary, Indiana, in 1914, provided that, with parental consent and cooperation of church authorities, children could be released for one or more periods each week to go to churches of their own faith and there participate in religious instruction, returning to the public school at the end of the period, or if the period was the last of the day, going home.

The idea spread to other communities, but, for a variety of reasons, quite slowly. In rural and small urban communities, such as Champaign, Illinois, it was found more effective to have the religious instruction take place within the public schools rather than in the church schools.

In Champaign in 1940, an interfaith council with Protestant, Roman Catholic, and Jewish representatives was formed to offer religious instruction within the public schools during regular school hours. Instructors of religion were to be hired and paid by or through the interfaith council, subject to the approval and supervision of the public school superintendent. Each term the public school teachers distributed to the children cards on which parents could indicate their consent to the enrollment of their children in the religion classes. Children who obtained such consent were released by the school authorities from the secular work for a period of thirty minutes weekly in the elementary schools and forty-five minutes in the junior high school. Only Protestant instruction was conducted within the regular classroom; children released for Roman Catholic or Jewish instruction left their classroom for other parts of the building. Nonparticipants were also relocated, sometimes accompanied by their regular teachers and sometimes not. At the end of each session, children who had participated in any religious instruction returned to the regular classroom, and regular class work was resumed.

McCollum v. Board of Education (1948) was a suit, brought in a state court by the mother of a fifth grader, challenging the constitutionality of Champaign's program. In the Supreme Court, counsel for the school authorities argued that the establishment clause did not apply to the states, and that the contrary holding in everson v. board of education (1947) should be overruled. This the Court refused to do, reasserting Everson 's conclusion about the scope of the establishment clause.

No more successful was the argument that historically the establishment clause had been intended to forbid only preferential treatment of one faith over others, whereas the Champaign program was open equally to Protestants, Roman Catholics, and Jews. Here, too, the Court found no reason to reconsider its statement in Everson that the clause barred aid not only to one religion but equally to all religions.

Where, the Court said, pupils compelled by law to go to school for secular education are released in part from their legal duty if they attend religious classes, the tax-supported public school system's use to aid religious groups to spread their faiths falls squarely under the ban of the First Amendment. Not only are the public school buildings used for the dissemination of religious doctrines, but the state also affords sectarian groups an invaluable aid, helping to provide pupils for their religious classes through the use of the state's compulsory public school machinery. This, the Court concluded, was not separation of church and state.

Although the Court's language appeared to encompass in its determination of unconstitutionality released time plans providing for off-school religious instruction (and Justice hugo l. black who wrote the opinion so interpreted it), the majority reached a contrary conclusion in Zorach v. Clausen (1952).

Zorach involved New York City's program, which restricted public school participation to releasing children whose parents had signed consent cards and specifically forbade comment by any principal or teacher on the attendance or nonattendance of any pupil upon religious instruction. This situation, said the Court speaking through Justice william o. douglas, differed from that presented in the McCollum case. There, the classrooms had been used for religious instruction and the influence of the public school used to promote that instruction. Here, the public schools did no more than accommodate their schedules to allow children, who so wished, to go elsewhere for religious instruction completely independent of public school operations. The situation, Douglas said, was not different from that presented when a Roman Catholic student asks his teacher to be excused to attend a mass on a Holy Day of Obligation or a Jewish student to attend synagogue on Yom Kippur.

Government, Justice Douglas said further, may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. Government, however, must be neutral in respect to religion, not hostile. "We are," he said, "a religious people whose institutions presuppose a Supreme Being. When the state encourages religious instruction or cooperates with religious authorities, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs."

On the basis of McCollum and Zorach, the present law is that released time programs are constitutional so long as the religious instruction is given off the public school premises and the public school teachers and authorities are involved in it only by releasing uncoerced children who choose to participate in it.

Leo Pfeffer
(1986)