• Key point. “Released time” programs that permit public school students to be released from classes to attend religious instruction at a church or other place of worship do not violate the first amendment’s nonestablishment of religion clause so long as no expenditure of tax revenue is involved.

* A federal appeals court ruled that a New York law allowing “released time” from public schools for religious instruction was not implemented in such a way as to violate the first amendment’s nonestablishment of religion clause. The New York Education Law allows public school districts to run “released time” programs in order to facilitate the religious education of students whose parents wish their children to participate in religious instruction during the school day, provided that the students are released for only one hour per week at the close of the morning or afternoon session. A public school allowed students to be released to participate in religious instruction at a Catholic church next door to the school or at a program conducted by the Protestant-based Child Evangelism Fellowship, which met at a town hall across the street from the school. Participation in either program required parental permission and was limited to one hour of instruction in the middle of every Tuesday morning. Those students whose parents did not allow them to attend religious instruction remained in the school classroom without organized activities, awaiting the return of the participants in the “released time” program. Two former students at this school claimed that the released time program was unconstitutional because it (1) humiliated them, (2) left non-participants in the program with nothing to do during compulsory time that must be spent in the classroom and gave teachers no guidance on how to use that time, (3) conveyed a message of endorsement of religion to susceptible young pupils during prime learning time, and (4) enabled the students receiving religious instruction to bring religious literature into the classrooms.

A federal appeals court ruled that the released time program did not offend the constitution. It relied on a 1954 United States Supreme Court case upholding the constitutionality of the very same New York released time law that was being challenged in this case. Zorach v. Clauson, 343 U.S. 306 (1952). In the Zorach case the Supreme Court concluded that New York’s “released time” program did not violate the first amendment because (1) no religious instruction took place inside public school classrooms; (2) no expenditure of public funds supported the program; and (3) the public school did not promote the instruction beyond simply collecting permission slips from parents. The Court found no constitutional violation because the schools only adjusted “their schedules to accommodate the religious needs of the people.”

The federal appeals court concluded that the Supreme Court’s reasoning in the Zorach case applied equally in this case: “The program’s implementation uses no public funds and involves no on-site religious instruction. The program is purely voluntary and there is no specific coercion or pressure brought to bear on non-participants by school officials.” As a result, the court rejected the former students’ claims and dismissed the lawsuit. The court also quoted from two more recent Supreme Court decisions: “The Constitution … requires that we keep in mind the myriad, subtle ways in which the [first amendment] can be eroded,” but we should “not hold that every state action implicating religion is invalid if one or a few citizens find it offensive. People may take offense at all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation.” Pierce v. Sullivan West Central High School, 379 F.3d 56 (2nd Cir. 2004).

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