In the 1925 case of Pierce v. Society of Sisters, the U.S. Supreme Court ruled that states cannot use their compulsory education laws to prevent children from attending private, religious schools, instead of public schools. In the decades since, the Court has gone much further to accommodate students’ religious needs, by ruling that public schools can choose to release students during the school day to receive private religious instruction off campus, if parents consent. However, the Court does not require schools to so release students, and under First Amendment principles of church-state separation, public schools cannot encourage or discourage participation in religious instruction.
The key Supreme Court cases related to religious “released-time” programs are McCollum v. Board of Education (1948) and Zorach v. Clauson (1952). Technically, McCollum is not about released time, because it struck down an Illinois school board’s policy of allowing religious indoctrination inside public schools during the school day. But the McCollum case established principles that have guided later rulings on how the First Amendment applies to schools.
In McCollum, the Court found that religious groups and school officials closely cooperated to provide religious instruction to children. Although the religion teachers were not paid by public funds, they were subject to the approval and supervision of the superintendent of schools. Although, officially, separate classes were offered for Catholic, Protestant and Jewish students, schools went several years without providing Jewish classes, and all the classes taught specific religious doctrines. Although students participated only if their parents signed approval slips, classes were taught on tax-supported government property. Thus the school board’s actions in this case violated the First Amendment’s ban against laws promoting an establishment of religion. (That ban applies to state and local governments via the 14th Amendment.)
Justice Hugo Black, writing for the Court’s majority, ruled, “Here not only are the State’s tax-supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the state’s compulsory public school machinery. This is not separation of Church and State.”
In the case of Engel v. Vitale (1962), the case that banned teacher-led prayer in public schools, the Supreme Court ruled, “When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. … [The First Amendment’s ban on any government establishment of religion] thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate. Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand.”
Four years after McCollum, in the Zorach case, the Supreme Court ruled specifically on the constitutionality of off-campus, release-time programs. The Court upheld them, under certain conditions, by clarifying the earlier McCollum opinion. The Court emphasized the difference between schools actually supporting religious indoctrination and schools merely accommodating children’s religious needs. The Court upheld a New York City policy of allowing children, upon parental request, to leave public schools part of the day for religious studies taught by private groups on private property.
Although dissenting justices argued that the school policy in Zorach was much like the one in McCollum, Justice William O. Douglas ruled, “In the McCollum case the classrooms were used for religious instruction and the force of the public school was used to promote the instruction. Here, (the) public schools do no more than accommodate their schedules to a program of outside religious instructions.”
Douglas also wrote, “When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to accommodate sectarian needs, it follows the best of our traditions.” In short, church-state separation does not require the state to be “hostile, suspicious, and even unfriendly” to the needs of church members.
The key differences between McCollum and Zorach might be characterized this way: In McCollum, students participated in (1) state-approved religious exercises (2) in school (3) upon parental consent, but in Zorach, students participated in (1) purely private religious exercises (2) off campus (3) upon parental request.
Although, actually, the opinions in McCollum and Zorach both refer to parental wishes as “requests,” the word may be less appropriate in McCollum. McCollum emphasized the compulsory nature of school attendance, and the fact that the state pre-approved and endorsed specific religion teachers for children. Because those were the only allowable religion teachers, individual parents could not so much “request” that their children receive desired instruction as “consent” for their children to receive whatever instruction the state offered. Individual parents could choose only to accept or reject the state-sponsored indoctrination of their children.
Zorach, on the other hand, emphasized accommodating the religious needs of students and parents who had made independent religious choices. Under the Court’s characterization, individual parents freely decided which doctrines and religious teachers they wanted individual children exposed to, and those parents took the initiative to ask the school to accommodate the children’s religious obligations. The schools didn’t approve or endorse the doctrines or teachers, but merely allowed children to voluntarily go hear them. So, in spite of the Court’s language, McCollum arguably dealt with parental consent, while Zorach dealt with true parental requests.
"[P]ublic school accommodation of religious beliefs through a released-time program is a largely passive response to parental assertions of the right to 'direct the upbringing and education of children,'" according to a federal appellate court in Lanner v. Wimmer (10th Cir. 1981), citing Pierce, and Wisconsin v. Yoder (1972).
Under Zorach, states can allow released-time programs when parents and students request them, but most states let individual school districts decide whether to have the programs. If schools choose to allow released time, students from all religious groups must be allowed to participate, without discrimination, in their own groups’ activities. Members of both large and small religions must be treated equally.
Lower federal courts have ruled that schools cannot, at their expense, solicit students to attend any religious programs. One such ruling is Smith v. Smith (4th Cir. 1975). Schools also tread dangerous ground by allowing religious recruiters on campus to publicize released-time programs, or by allowing released-time programs in school parking lots or other locations that make the programs appear to be official school activities. All interactions between school and church officials should be conducted in a manner that follows traditional principles of church-state separation. Such issues are discussed in Doe v. Shenandoah County School Board (W.D. Va. 1990). Schools cannot penalize students for not joining released-time programs, because Zorach speaks disfavorably of “any one or more teachers … using their office to persuade or force students to take religious instruction.”
Schools should avoid entangling their administration with that of any church program when keeping track of student attendance from released-time programs, according to a federal appeals court in Lanner v. Wimmer (10th Cir. 1981). The court required schools to find the “least entangling” means of preventing truancy, which meant school officials should not have to hunt down attendance slips at religious institutions.
Precedents from school-prayer cases, and from other cases involving church-state relations, strongly suggest that schools should not rent their facilities to religious groups for indoctrination during the school day, and that schools probably cannot give academic credit for released-time programs.
Although in Lanner v. Wimmer the federal appeals court gave reasons why certain other types of credit may be constitutional, other courts might disagree, and Supreme Court precedents are ultimately controlling.
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