kalen said:
What does it matter if the classes are held off of school property if they are held during class time?
Well, in
ZORACH v. CLAUSON, 343 U.S. 306 (1952), the United States Supreme Court said this factor made a difference:
New York City has a program which permits its public schools to release students during the school day so that they may leave the school buildings and school grounds and go to religious centers for religious instruction or devotional exercises. A student is released on written request of his parents. Those not released stay in the classrooms. The churches make weekly reports to the schools, sending a list of children who have been released from public school but who have not reported for religious instruction.
This "released time" program involves neither religious instruction in public school classrooms nor the expenditure of public funds. All costs, including the application blanks, are paid by the religious organizations. The case is therefore unlike McCollum v. Board of Education, 333 U.S. 203, which involved a "released time" program from Illinois. In that case the classrooms were turned over to religious instructors. We accordingly held that the program violated the First Amendment which (by reason of the Fourteenth Amendment) prohibits the states from establishing religion or prohibiting its free exercise.
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It takes obtuse reasoning to inject any issue of the "free exercise" of religion into the present case. No one is forced to go to the religious classroom and no religious exercise or instruction is brought to the classrooms of the public schools. A student need not take religious instruction. He is left to his own desires as to the manner or time of his religious devotions, if any.
There is a suggestion that the system involves the use of coercion to get public school students into religious classrooms. There is no evidence in the record before us that supports that conclusion.
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We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, 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.
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In the McCollum case the classrooms were used for religious instruction and the force of the public school was used to promote that instruction. Here, as we have said, the public schools do no more than accommodate their schedules to a program of outside religious instruction.
This opinion was written by Justice Douglas, who was famous for many of his bizarre opinions. In Justice Douglas's view,
not allowing the kiddies to get religious instruction during school time would be "hostility" toward religion.
(Of interest to some may be Justice Douglas's invocation of the "fastidious atheist or agnostic," who might find fault with the Court's "supplication" that calls upon the Almighty to "save the United States and this Honorable Court." In the Pledge case, Justice O'Connor refers to it as a "proclamation," rather than a "supplication." A "supplication" is, after all, a prayer.)
There were dissents in Zorach from Justices Black, Frankfurter and Jackson. Justice Black said he thought the earlier McCollum case was exactly on point:
I see no significant difference between the invalid Illinois [McCollum] system and that of New York here sustained. Except for the use of the school buildings in Illinois, there is no difference between the systems which I consider even worthy of mention.
In other words, Justice Black felt that it didn't make any difference, constitutionally speaking, whether the religious instruction took place on school grounds or not:
McCollum thus held that Illinois could not constitutionally manipulate the compelled classroom hours of its compulsory school machinery so as to channel children into sectarian classes. Yet that is exactly what the Court holds New York can do.
Justice Black further criticized the majority for insulting those whose religious beliefs differ from their own, referring to "the Court's legal exaltation of the orthodox and its derogation of unbelievers." He added, "The First Amendment has lost must [sic] if the religious follower and the atheist are no longer to be judicially regarded as entitled to equal justice under law."
Justice Frankfurter felt that religious instruction during school hours was an important consideration:
The pith of the case is that formalized religious instruction is substituted for other school activity which those who do not participate in the released-time program are compelled to attend. The school system is very much in operation during this kind of released time. If its doors are closed, they are closed upon those students who do not attend the religious instruction, in order to keep them within the school. That is the very thing which raises the constitutional issue. It is not met by disregarding it. Failure to discuss this issue does not take it out of the case.
He also chided Justice Douglas for making much of there being no evidence in the record that supports a conclusion that the challenged system involves the use of coercion to get public school students into religious classrooms. As Justice Frankfurter pointed out, there was no evidence of any coercion
because the challengers never had any opportunity to present any! They
wanted to present their evidence of coercion, but the lower courts deemed it irrelevant to the constitutional question!
Justice Jackson asserted that coercion and use of state time were considerations important to constitutionality:
This released time program is founded upon a use of the State's power of coercion, which, for me, determines its unconstitutionality. Stripped to its essentials, the plan has two stages: first, that the State compel each student to yield a large part of his time for public secular education; and, second, that some of it be "released" to him on condition that he devote it to sectarian religious purposes.
Justice Jackson also rebuked the majority for its insinuation that those who object to such a program are necessarily hostile to religion:
As one whose children, as a matter of free choice, have been sent to privately supported Church schools, I may challenge the Court's suggestion that opposition to this plan can only be antireligious, atheistic, or agnostic. My evangelistic brethren confuse an objection to compulsion with an objection to religion. It is possible to hold a faith with enough confidence to believe that what should rendered to God does not need to be decided and collected by Caesar.
Zorach has not been overruled, but the Supreme Court has largely avoided following much of its sweeping language in majority opinions. In the
Pledge case, Justice Thomas used some of Zorach's belittling language, saying that where there is no coercion, it would take "obtuse reasoning" to find a valid free-exercise claim.
