Release Time from Public Schools (For Religious Purposes)

Relationships between religious institutions and public schools have taken many forms and presented various First Amendment issues over the years. One frequently arising issue is whether a public school violates the Establishment Clause or the free exercise clause when it releases students from school before the usual end of the school day to attend a religious education class.

Religious educators began a movement early in the twentieth century to expand their religious education programs by adding weekday classes. Proponents argued that public schools had included some aspect of religious education until late in the nineteenth century, but that was no longer the practice. Many clergy claimed that only a small proportion of school-age children were attending religious classes on Sundays. They said they could increase attendance at religious classes if they could offer weekday religious classes in the churches and synagogues. To encourage religious class attendance, they proposed that students who wanted to attend these classes be released early from their public school classes.

One such program started in White Plains, New York, in the early 1920s. Joseph Lewis, president of the Free Thinkers Society, challenged the program as violating the provision of the New York Constitution that prohibited the ‘‘use of property or money in aid of’’ religious schools. (Clarence Darrow wrote to Lewis in 1925, and offered to assist him in this case, as soon as he was finished with the Scopes Monkey Trial.) The New York Court of Appeals rejected Lewis’s argument, since the program did not use public school buildings or public money. (This case, decided in 1927, predated the application of the First Amendment to states, at least for the religion clauses, which might explain why Lewis did not seek U.S. Supreme Court review of the New York decision.)

In 1940, clergy from several faiths persuaded the school board in Champaign, Illinois to allow them to conduct religious education classes in the public schools. If parents consented, their children would attend these classes, which were forty-five or sixty minutes once a week. Children who were released for the religious classes were required to attend them—absences were reported to the school administration and to the parents. Children who did not sign up for these classes went elsewhere in the building for other activities.

A challenge to the Illinois program reached the Supreme Court in 1948 in the case of McCollum v. Board of Education. The Court pointed out that they had recently decided, in Everson v. Board of Education (1947), that the religious clauses of the First Amendment applied to the states. Following Everson, the Court ruled that the combination of the use of public school buildings and compulsory school attendance machinery violated the Establishment Clause.

At about the same time the Illinois program began, the New York legislature considered a bill that would allow local school boards to adopt released time programs. The New York plan, however, provided that the classes were to be held in the religious institutions, not in the public schools. During the debate on this legislation, one proponent argued that this concept was not novel—similar programs were in effect in forty-one other states, and in many communities in New York State. Some opponents objected to the bill because they opposed any reduction in the time students spent in school. Some objected on constitutional grounds, arguing that the schools would be endorsing religion by participating in such a program. Some religious leaders opposed the plan for what seemed to be competitive reasons—that their particular denominations did not have sufficient staff or facilities to offer weekday programs.

The McCollum decision prompted opponents of the New York program to go to court. In Zorach v. Clauson (1952), the Court distinguished the New York program from the Illinois program, primarily on the basis that the religious instruction took place in the religious institution, not in the public school. The Court also pointed out that schools neither encouraged students to participate nor penalized those who did not.

Zorach is the most recent Supreme Court case involving a released time program. There have been several lower court decisions in cases challenging released time programs. These have addressed such issues as whether religious program recruiters can come onto school grounds to publicize their programs (Doe v. Shenandoah County School Board [1990]), whether the public school can give credit toward graduation requirements for religious classes taken in the released time program (Lanner v. Winner [1981]), and how involved public school officials can get in recruiting students for released time classes (Smith v. Smith [1976]) or enforcing attendance (Lanner).

ELI C. BORTMAN

References and Further Reading

• Kurland, Philip, The Supreme Court, Compulsory Education, and the First Amendment’s Religion Clauses, West Virginia Law Review 75 (1973): 213.
• Note: The ‘‘Released Time’’ Cases Revisited: A Study of Group Decisionmaking by the Supreme Court, Yale Law Journal 83 (1974): 1202.

Cases and Statutes Cited

• Doe v. Shenandoah County School Board, 737 F. Supp. 913 (W.D. Va. 1990)
• Everson v. Board of Education, 330 U.S. 1 (1947)
• Lanner v. Wimmer, 662 F.2d 1349 (10th Cir. 1981)
• McCollum v. Board of Education, 333 U.S. 203 (1948)
• Smith v. Smith, 523 F.2d 121 (4th Cir. 1975)cert. denied, 423 U.S. 1073 (1976)
• Zorach v. Clauson, 343 U.S. 306 (1952)