Under § 3210 of the New York Education Law and the
regulations thereunder, New York City permits its public schools to
release students during school hours, on written requests of their
parents, so that they may leave the school buildings and grounds
and go to religious centers for religious instruction or devotional
exercises. The same section makes school attendance compulsory;
students not released stay in the classrooms, and the churches
report to the schools the names of children released from public
schools who fail to report for religious instruction. The program
involves neither religious instruction in public schools nor the
expenditure of public funds.
Held: This program does not violate the First
Amendment, made applicable to the States by the Fourteenth
Amendment.
McCollum v. Board of Education, 333 U.
S. 203, distinguished. Pp.
343 U. S.
308-315.
(a) By this system, New York has neither prohibited the "free
exercise" of religion nor made a law "respecting an establishment
of religion" within the meaning of the First Amendment. Pp.
343 U. S.
310-315.
(b) There is no evidence in the record in this case to support a
conclusion that the system involves the use of coercion to get
public school students into religious classrooms. Pp.
343 U. S.
311-312.
303 N.Y.
161, 100 N.E.2d 463, affirmed.
The New York Court of Appeals sustained N.Y. Education Law
§ 3210 and the regulations thereunder permitting absence of
students from the public schools for religious observance and
education, against the claim that the program thereunder violated
the Federal Constitution.
303 N.Y.
161, 100 N.E.2d 463. On appeal to this Court,
affirmed, p.
343 U. S.
315.
Page 343 U. S. 308
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
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.
[
Footnote 1]
This "released time" program involves neither religious
instruction in public school classrooms nor the expenditure
Page 343 U. S. 309
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 [
Footnote 2] which (by reason of the Fourteenth Amendment)
[
Footnote 3] prohibits the
states from establishing religion or prohibiting its free
exercise.
Appellants, who are taxpayers and residents of New York City and
whose children attend its public schools, [
Footnote 4] challenge the present law, contending it
is, in essence, not different from the one involved in the
McCollum case. Their argument, stated elaborately in
various ways, reduces itself to this: the weight and influence of
the school is put behind a program for religious instruction;
public school teachers police it, keeping tab on students who are
released; the classroom activities come to a halt while the
students who are released for religious instruction are on leave;
the school is a crutch on which the churches are leaning for
support in their religious training; without the cooperation of the
schools, this "released time" program,
Page 343 U. S. 310
like the one in the
McCollum case, would be futile and
ineffective. The New York Court of Appeals sustained the law
against this claim of unconstitutionality.
303
N.Y. 161, 100 N.E.2d 463. The case is here on appeal. 28 U.S.C.
§ 1257(2).
The briefs and arguments are replete with data bearing on the
merits of this type of "released time" program. Views pro and con
are expressed, based on practical experience with these programs
and with their implications. [
Footnote 5] We do not stop to summarize these materials,
nor to burden the opinion with an analysis of them. For they
involve considerations not germane to the narrow constitutional
issue presented. They largely concern the wisdom of the system, its
efficiency from an educational point of view, and the political
considerations which have motivated its adoption or rejection in
some communities. Those matters are of no concern here, since our
problem reduces itself to whether New York, by this system, has
either prohibited the "free exercise" of religion or has made a law
"respecting an establishment of religion" within the meaning of the
First Amendment.
Page 343 U. S. 311
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. [
Footnote 6] The
present record indeed tells us that the school authorities are
neutral in this regard, and do no more than release students whose
parents so request. If, in fact, coercion were used, if it were
established that any one or more teachers were using their office
to persuade or force students to take the religious instruction, a
wholly different case would be presented. [
Footnote 7] Hence, we put aside that claim of
coercion
Page 343 U. S. 312
both as respects the "free exercise" of religion and "an
establishment of religion" within the meaning of the First
Amendment.
Moreover, apart from that claim of coercion, we do not see how
New York by this type of "released time" program has made a law
respecting an establishment of religion within the meaning of the
First Amendment. There is much talk of the separation of Church and
State in the history of the Bill of Rights and in the decisions
clustering around the First Amendment.
See Everson v. Board of
Education, 330 U. S. 1;
McCollum v. Board of Education, supra. There cannot be the
slightest doubt that the First Amendment reflects the philosophy
that Church and State should be separated. And so far as
interference with the "free exercise" of religion and an
"establishment" of religion are concerned, the separation must be
complete and unequivocal. The First Amendment within the scope of
its coverage permits no exception; the prohibition is absolute. The
First Amendment, however, does not say that, in every and all
respects there shall be a separation of Church and State. Rather,
it studiously defines the manner, the specific ways, in which there
shall be no concert or union or dependency one on the other. That
is the common sense of the matter. Otherwise the state and religion
would be aliens to each other -- hostile, suspicious, and even
unfriendly. Churches could not be required to pay even property
taxes. Municipalities would not be permitted to render police or
fire protection to religious groups. Policemen who helped
parishioners into their places of worship would violate the
Constitution. Prayers in our legislative halls; the appeals
Page 343 U. S. 313
to the Almighty in the messages of the Chief Executive; the
proclamations making Thanksgiving Day a holiday; "so help me God"
in our courtroom oaths -- these and all other references to the
Almighty that run through our laws, our public rituals, our
ceremonies would be flouting the First Amendment. A fastidious
atheist or agnostic could even object to the supplication with
which the Court opens each session: "God save the United States and
this Honorable Court."
We would have to press the concept of separation of Church and
State to these extremes to condemn the present law on
constitutional grounds. The nullification of this law would have
wide and profound effects. A Catholic student applies to his
teacher for permission to leave the school during hours on a Holy
Day of Obligation to attend a mass. A Jewish student asks his
teacher for permission to be excused for Yom Kippur. A Protestant
wants the afternoon off for a family baptismal ceremony. In each
case, the teacher requires parental consent in writing. In each
case, the teacher, in order to make sure the student is not a
truant, goes further and requires a report from the priest, the
rabbi, or the minister. The teacher, in other words, cooperates in
a religious program to the extent of making it possible for her
students to participate in it. Whether she does it occasionally for
a few students, regularly for one, or pursuant to a systematized
program designed to further the religious needs of all the students
does not alter the character of the act.
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
Page 343 U. S. 314
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. To hold that it may not would be
to find in the Constitution a requirement that the government show
a callous indifference to religious groups. That would be
preferring those who believe in no religion over those who do
believe. Government 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. But we find no constitutional requirement which makes it
necessary for government to be hostile to religion and to throw its
weight against efforts to widen the effective scope of religious
influence. The government must be neutral when it comes to
competition between sects. It may not thrust any sect on any
person. It may not make a religious observance compulsory. It may
not coerce anyone to attend church, to observe a religious holiday,
or to take religious instruction. But it can close its doors or
suspend its operations as to those who want to repair to their
religious sanctuary for worship or instruction. No more than that
is undertaken here.
This program may be unwise and improvident from an educational
or a community viewpoint. That appeal is made to us on a theory,
previously advanced, that each case must be decided on the basis of
"our own prepossessions."
See McCollum v. Board of Education,
supra, p.
333 U. S. 238.
Our individual preferences, however, are not the constitutional
standard. The constitutional standard is the separation of Church
and State. The problem, like many problems in constitutional law,
is one of degree.
See McCollum v. Board of Education,
supra, p.
333 U. S.
231.
Page 343 U. S. 315
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. We follow the
McCollum
case. [
Footnote 8] But we
cannot expand it to cover the present released time program unless
separation of Church and State means that public institutions can
make no adjustments of their schedules to accommodate the religious
needs of the people. We cannot read into the Bill of Rights such a
philosophy of hostility to religion.
Affirmed.
[
Footnote 1]
The New York City released time program is embodied in the
following provisions:
(a) N.Y. Education Law, § 3210, subdiv. 1(b), which
provides that "Absence for religious observance and education shall
be permitted under rules that the commissioner shall
establish."
(b) Regulations of the Commissioner of Education of the State of
New York, Art. 17, § 154 (1 N.Y. Official Code Comp. 683),
which provide for absence during school hours for religious
observance and education outside the school grounds [par. 1], where
conducted by or under the control of a duly constituted religious
body [par. 2]. Students must obtain written requests from their
parents or guardians to be excused for such training [par. 1], and
must register for the training and have a copy of their
registration filed with the public school authorities [par. 3].
Weekly reports of their attendance at such religious schools must
be filed with their principal or teacher [par. 4]. Only one hour a
week is to be allowed for such training, at the end of a class
session [par. 5], and where more than one religious school is
conducted, the hour of release shall be the same for all religious
schools [par. 6].
(c) Regulations of the Board of Education of the City of New
York, which provide similar rules supplementing the State
Commissioner's regulations, with the following significant
amplifications: no announcement of any kind will be made in the
public schools relative to the program [rule 1]. The religious
organizations and parents will assume full responsibility for
attendance at the religious schools and will explain any failures
to attend on the weekly attendance reports [rule 3]. Students who
are released will be dismissed from school in the usual way [rule
5]. There shall be no comment by any principal or teacher on
attendance or nonattendance of any pupil upon religious instruction
[rule 6].
[
Footnote 2]
The First Amendment reads in relevant part, "Congress shall make
no law respecting an establishment of religion, or prohibiting the
free exercise thereof."
[
Footnote 3]
See Stromberg v. California, 283 U.
S. 359;
Cantwell v. Connecticut, 310 U.
S. 296;
Murdock v. Pennsylvania, 319 U.
S. 105.
[
Footnote 4]
No problem of this Court's jurisdiction is posed in this case,
since, unlike the appellants in
Doremus v. Board of
Education, 342 U. S. 429,
appellants here are parents of children currently attending schools
subject to the released time program.
[
Footnote 5]
See, e.g., Beckes, Weekday Religious Education
(National Conference of Christians and Jews, Human Relations
Pamphlet No. 6); Butts, American Tradition in Religion and
Education, pp 188, 199; Moehlman, The Wall of Separation between
Church and State, pp. 123, 155 ff.; Moehlman, The Church as
Educator, pp. 103 ff.; Moral and Spiritual Values in the Public
Schools (Educational Policies Commission, 1951); Newman, The
Sectarian Invasion of Our Public Schools; Public School Time for
Religious Education, 12 Jewish Education 130 (January, 1941);
Religious Instruction On School Time, 7 Frontiers of Democracy 72
(1940); Released Time for Religious Education in New York City's
Schools (Public Education Association, June 30, 1943); Released
Time for Religious Education in New York City's Schools (Public
Education Association, June 30, 1945); Released Time for Religious
Education in New York City Schools (Public Education Association,
1949); 2 Stokes, Church and State in the United States, pp.
523-548; The Status Of Religious Education In The Public Schools
(National Education Association).
[
Footnote 6]
Nor is there any indication that the public schools enforce
attendance at religious schools by punishing absentees from the
released time programs for truancy.
[
Footnote 7]
Appellants contend that they should have been allowed to prove
that the system is, in fact, administered in a coercive manner. The
New York Court of Appeals declined to grant a trial on this issue,
noting,
inter alia, that appellants had not properly
raised their claim in the manner required by state practice.
303 N.Y.
161, 174, 100 N.E.2d 463, 469. This independent state ground
for decision precludes appellants from raising the issue of
maladministration in this proceeding.
See Louisville &
Nashville R. Co. v. Woodford, 234 U. S.
46,
234 U. S. 51;
Atlantic Coast Line R. Co. v. Mims, 242 U.
S. 532,
242 U. S. 535;
American Surety Co. v. Baldwin, 287 U.
S. 156,
287 U. S.
169.
The only allegation in the complaint that bears on the issue is
that the operation of the program
"has resulted and inevitably results in the exercise of pressure
and coercion upon parents and children to secure attendance by the
children for religious instruction."
But this charge does not even implicate the school authorities.
The New York Court of Appeals was therefore generous in labeling it
a "conclusory" allegation. 303 N.Y. at 174, 100 N.E.2d at 469.
Since the allegation did not implicate the school authorities in
the use of coercion, there is no basis for holding that the New
York Court of Appeals under the guise of local practice defeated a
federal right in the manner condemned by
Brown v. Western R. of
Alabama, 338 U. S. 294, and
related cases.
[
Footnote 8]
Three of us -- THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS and MR.
JUSTICE BURTON -- who join this opinion agreed that the "released
time" program involved in the
McCollum case was
unconstitutional. It was our view at the time that the present type
of "released time" program was not prejudged by the
McCollum case, a conclusion emphasized by the reservation
of the question in the separate opinion by MR. JUSTICE FRANKFURTER
in which MR. JUSTICE BURTON joined.
See 333 U.S. at
333 U. S. 225,
where it was said,
"Of course, 'released time,' as a generalized conception,
undefined by differentiating particularities, is not an issue for
Constitutional adjudication. Local programs differ from each other
in many and crucial respects. . . . It is only when challenge is
made to the share that the public schools have in the execution of
a particular 'released time' program that close judicial scrutiny
is demanded of the exact relation between the religious instruction
and the public educational system in the specific situation before
the Court."
MR. JUSTICE BLACK, dissenting.
Illinois ex rel. McCollum v. Board of Education,
333 U. S. 203,
held invalid as an "establishment of religion" an Illinois system
under which school children, compelled by law to go to public
schools, were freed from some hours of required school work on
condition that they attend special religious classes held in the
school buildings. Although the classes were taught by sectarian
Page 343 U. S. 316
teachers neither employed nor paid by the state, the state did
use its power to further the program by releasing some of the
children from regular class work, insisting that those released
attend the religious classes, and requiring that those who remained
behind do some kind of academic work while the others received
their religious training. We said this about the Illinois
system:
"Pupils compelled by law to go to school for secular education
are released in part from their legal duty upon the condition that
they attend the religious classes. This is beyond all question a
utilization of the tax established and tax supported public school
system to aid religious groups to spread their faith. And it falls
squarely under the ban of the First Amendment. . . ."
McCollum v. Board of Education, supra, at pp.
333 U. S.
209-210.
I see no significant difference between the invalid Illinois
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 the New
York program, as in that of Illinois, the school authorities
release some of the children on the condition that they attend the
religious classes, get reports on whether they attend, and hold the
other children in the school building until the religious hour is
over. As we attempted to make categorically clear, the
McCollum decision would have been the same if the
religious classes had not been held in the school buildings. We
said:
"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
Page 343 U. S. 317
not separation of Church and State."
(Emphasis supplied.)
McCollum v. Board of Education,
supra, at p.
333 U. S. 212.
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.
I am aware that our
McCollum decision on separation of
Church and State has been subjected to a most searching examination
throughout the country. Probably few opinions from this Court in
recent years have attracted more attention or stirred wider debate.
Our insistence on "a wall between Church and State which must be
kept high and impregnable" has seemed to some a correct exposition
of the philosophy and a true interpretation of the language of the
First Amendment to which we should strictly adhere. [
Footnote 2/1] With equal conviction and
sincerity, others have thought the
McCollum decision
fundamentally wrong, [
Footnote 2/2]
and have pledged continuous warfare against it. [
Footnote 2/3] The opinions in the court below and
the briefs here reflect these diverse viewpoints. In dissenting
today, I mean to do more than give routine approval to our
McCollum decision. I mean also to reaffirm my faith in
the
Page 343 U. S. 318
fundamental philosophy expressed in
McCollum and
Everson v. Board of Education, 330 U. S.
1. That reaffirmance can be brief because of the
exhaustive opinions in those recent cases.
Difficulty of decision in the hypothetical situations mentioned
by the Court, but not now before us, should not confuse the issues
in this case. Here, the sole question is whether New York can use
its compulsory education laws to help religious sects get
attendants presumably too unenthusiastic to go unless moved to do
so by the pressure of this state machinery. That this is the plan,
purpose, design and consequence of the New York program cannot be
denied. The state thus makes religious sects beneficiaries of its
power to compel children to attend secular schools. Any use of such
coercive power by the state to help or hinder some religious sects
or to prefer all religious sects over nonbelievers or vice versa is
just what I think the First Amendment forbids. In considering
whether a state has entered this forbidden field, the question is
not whether it has entered too far, but whether it has entered at
all. New York is manipulating its compulsory education laws to help
religious sects get pupils. This is not separation, but
combination, of Church and State.
The Court's validation of the New York system rests in part on
its statement that Americans are "a religious people whose
institutions presuppose a Supreme Being." This was at least as true
when the First Amendment was adopted, and it was just as true when
eight Justices of this Court invalidated the released time system
in
McCollum on the premise that a state can no more "aid
all religions" than it can aid one. [
Footnote 2/4] It was precisely because Eighteenth
Page 343 U. S. 319
Century Americans were a religious people divided into many
fighting sects that we were given the constitutional mandate to
keep Church and State completely separate. Colonial history had
already shown that, here as elsewhere, zealous sectarians entrusted
with governmental power to further their causes would sometimes
torture, maim and kill those they branded "heretics," "atheists" or
"agnostics." [
Footnote 2/5] The
First Amendment was therefore to insure that no one powerful sect
or combination of sects could use political or governmental power
to punish dissenters whom they could not convert to their faith.
Now, as then, it is only by wholly isolating the state from the
religious sphere and compelling it to be completely neutral, that
the freedom of each and every denomination and of all nonbelievers
can be maintained. It is this neutrality the Court abandons today
when it treats New York's coercive system as a program which merely
"encourages religious instruction or cooperates with religious
authorities." The abandonment is all the more dangerous to liberty
because of the Court's legal exaltation of the orthodox and its
derogation of unbelievers.
Under our system of religious freedom, people have gone to their
religious sanctuaries not because they feared the law, but because
they loved their God. The choice of all has been as free as the
choice of those who answered the call to worship moved only by the
music of the old Sunday morning church bells. The spiritual mind of
man has thus been free to believe, disbelieve, or doubt, without
repression, great or small, by the heavy
Page 343 U. S. 320
hand of government. Statutes authorizing such repression have
been stricken. Before today, our judicial opinions have refrained
from drawing invidious distinctions between those who believe in no
religion and those who do believe. The First Amendment has lost
much if the religious follower and the atheist are no longer to be
judicially regarded as entitled to equal justice under law.
State help to religion injects political and party prejudices
into a holy field. It too often substitutes force for prayer, hate
for love, and persecution for persuasion. Government should not be
allowed, under cover of the soft euphemism of "cooperation," to
steal into the sacred area of religious choice.
[
Footnote 2/1]
See, e.g., Newman, The Sectarian Invasion of Our Public
Schools; Moehlman, The Wall of Separation between Church and State;
Thayer, The Attack upon the American Secular School, pp. 179-199;
Butts, The American Tradition in Religion and Education, pp.
201-208.
See also Symposium on Religion and the State, 14
Law & Contemp.Prob. 1-159.
[
Footnote 2/2]
See, e.g., O'Neill, Religion and Education Under the
Constitution, pp. 219-253; Parsons, The First Freedom, pp. 158-178;
Van Dusen, God in Education.
See also Symposium on
Religion and the State,
supra.
[
Footnote 2/3]
See Moehlman, supra, 343
U.S. 306fn2/1|>n. 1, at p. 42. O'Neill,
supra,
343
U.S. 306fn2/2|>n. 2, at pp. 254-272.
[
Footnote 2/4]
A state policy of aiding "all religions" necessarily requires a
governmental decision as to what constitutes "a religion." Thus is
created a governmental power to hinder certain religious beliefs by
denying their character as such.
See, e.g., the
Regulations of the New York Commissioner of Education providing
that
"The courses in religious observance and education must be
maintained and operated by or under the control of
duly
constituted religious bodies."
(Emphasis added.) Art. 17, § 154, 1 N.Y. Official Code
Comp. 683. This provides precisely the kind of censorship which we
have said the Constitution forbids.
Cantwell v.
Connecticut, 310 U. S. 296,
310 U. S.
305.
[
Footnote 2/5]
Wertenbaker, The Puritan Oligarchy, 213-214.
MR. JUSTICE FRANKFURTER, dissenting.
By way of emphasizing my agreement with MR. JUSTICE JACKSON s
dissent, I add a few words.
The Court tells us that, in the maintenance of its public
schools, "[The State government] can close its doors or suspend its
operations" so that its citizens may be free for religious
devotions or instruction. If that were the issue, it would not rise
to the dignity of a constitutional controversy. Of course a State
may provide that the classes in its schools shall be dismissed, for
any reason, or no reason, on fixed days, or for special occasions.
The essence of this case is that the school system did not "close
its doors" and did not "suspend its operations." There is all the
difference in the world between letting the children out of school
and letting some of them out of school into religious classes. If
everyone is free to make what use he will of time wholly
unconnected from schooling required by law -- those who wish
sectarian instruction devoting it to that purpose, those who have
ethical instruction at home, to that, those who study music, to
that -- then of course there is no conflict with the Fourteenth
Amendment.
Page 343 U. S. 321
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.
Again, the Court relies upon the absence from the record of
evidence of coercion in the operation of the system. "If, in fact,
coercion were used," according to the Court,
"if it were established that any one or more teachers were using
their office to persuade or force students to take the religious
instruction, a wholly different case would be presented."
Thus, "coercion" in the abstract is acknowledged to be fatal.
But the Court disregards the fact that, as the case comes to us,
there could be no proof of coercion, for the appellants were not
allowed to make proof of it. Appellants alleged that
"The operation of the released time program has resulted and
inevitably results in the exercise of pressure and coercion upon
parents and children to secure attendance by the children for
religious instruction."
This allegation -- that coercion was, in fact, present and is
inherent in the system, no matter what disavowals might be made in
the operating regulations -- was denied by appellees. Thus, were
drawn issues of fact which cannot be determined, on any conceivable
view of judicial notice, by judges out of their own knowledge or
experience. Appellants sought an opportunity to adduce evidence in
support of these allegations at an appropriate trial. And though
the courts below cited the concurring opinion in
McCollum v.
Board of Education, 333 U. S. 203,
333 U. S. 226,
to "emphasize the importance of detailed
Page 343 U. S. 322
analysis of the facts to which the Constitutional test of
Separation is to be applied," they denied that opportunity on the
ground that such proof was irrelevant to the issue of
constitutionality.
See 198 Misc. 631, 641, 99 N.Y.S.2d
339, 348-349;
303 N.Y.
161, 174 175, 100 N.E.2d 463, 469. [
Footnote 3/1]
When constitutional issues turn on facts, it is a strange
procedure indeed not to permit the facts to be established. When
such is the case, there are weighty considerations for us to
require the State court to make its determination only after a
thorough canvass of all the circumstances and not to bar them from
consideration.
Cf. Chastleton Corp. v. Sinclair,
264 U. S. 543;
Hammond v. Schappi Bus Line, 275 U.
S. 164. If we are to decide this case on the present
record, however, a strict adherence to the usage of courts in
ruling on the sufficiency of pleadings would require us to take as
admitted the facts pleaded in the appellants' complaint, including
the fact of coercion, actual and inherent.
See Judge Fuld,
dissenting below, 303 N.Y. at 185, 100 N.E.2d at 475. Even on a
more latitudinarian view, I cannot see how a finding that coercion
was absent, deemed critical by this Court in sustaining the
practice, can be made here, when appellants were prevented from
making a timely showing of coercion because the courts below
thought it irrelevant.
The result in the
McCollum case,
333 U.
S. 203, was based on principles that received unanimous
acceptance by this Court, barring only a single vote. I agree with
MR. JUSTICE BLACK that those principles are disregarded
Page 343 U. S. 323
in reaching the result in this case. [
Footnote 3/2] Happily they are not disavowed by the
Court. From this, I draw the hope that, in future variations of the
problem which are bound to come here, these principles may again be
honored in the observance.
The deeply divisive controversy aroused by the attempts to
secure public school pupils for sectarian instruction would
promptly end if the advocates of such instruction were content to
have the school "close its doors or suspend its operations" -- that
is, dismiss classes in their entirety, without discrimination --
instead of seeking to use the public schools as the instrument for
securing attendance at denominational classes. The unwillingness of
the promoters of this movement to dispense with such use of the
public schools betrays a surprising want of confidence in the
inherent power of the various faiths to draw children to outside
sectarian classes -- an attitude that hardly reflects the faith of
the greatest religious spirits.
[
Footnote 3/1]
Issues that raise federal claims cannot be foreclosed by the
State court treating the allegations as "conclusory in character."
303 N.Y.
161, 174, 100 N.E.2d 463, 469. This is so even when a federal
statute is involved.
Brown v. Western R. of Alabama,
338 U. S. 294.
A fortiori, when the appeal is to the Constitution of the
United States.
[
Footnote 3/2]
The reservation made by four of the Justices in the
McCollum case did not, of course, refer to the New York
situation any more than it referred to that form of "released time"
under which the whole student body is dismissed. This was the
reservation:
"We do not consider, as indeed we could not, school programs not
before us which, though colloquially characterized as 'released
time,' present situations differing in aspects that may well be
constitutionally crucial. Different forms which 'released time' has
taken during more than thirty years of growth include programs
which, like that, before us, could not withstand the test of the
Constitution; others may be found unexceptionable."
333 U.S. at
333 U. S.
231.
MR. JUSTICE JACKSON, dissenting.
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
Page 343 U. S. 324
education; and, second, that some of it be "released" to him on
condition that he devote it to sectarian religious purposes.
No one suggests that the Constitution would permit the State
directly to require this "released" time to be spent "under the
control of a duly constituted religious body." This program
accomplishes that forbidden result by indirection. If public
education were taking so much of the pupils' time as to injure the
public or the students' welfare by encroaching upon their religious
opportunity, simply shortening everyone's school day would
facilitate voluntary and optional attendance at Church classes. But
that suggestion is rejected upon the ground that, if they are made
free, many students will not go to the Church. Hence, they must be
deprived of freedom for this period, with Church attendance put to
them as one of the two permissible ways of using it.
The greater effectiveness of this system over voluntary
attendance after school hours is due to the truant officer who, if
the youngster fails to go to the Church school, dogs him back to
the public school room. Her,e schooling is more or less suspended
during the "released time" so the nonreligious attendants will not
forge ahead of the churchgoing absentees. But it serves as a
temporary jail for a pupil who will not go to Church. It takes more
subtlety of mind than I possess to deny that this is governmental
constraint in support of religion. It is as unconstitutional, in my
view, when exerted by indirection as when exercised
forthrightly.
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
anti-religious, 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 be
Page 343 U. S. 325
rendered to God does not need to be decided and collected by
Caesar.
The day that this country ceases to be free for irreligion, it
will cease to be free for religion -- except for the sect that can
win political power. The same epithetical jurisprudence used by the
Court today to beat down those who oppose pressuring children into
some religion can devise as good epithets tomorrow against those
who object to pressuring them into a favored religion. And, after
all, if we concede to the State power and wisdom to single out
"duly constituted religious" bodies as exclusive alternatives for
compulsory secular instruction, it would be logical to also uphold
the power and wisdom to choose the true faith among those "duly
constituted." We start down a rough road when we begin to mix
compulsory public education with compulsory godliness.
A number of Justices just short of a majority of the majority
that promulgates today's passionate dialectics joined in answering
them in
Illinois ex rel. McCollum v. Board of Education,
333 U. S. 203. The
distinction attempted between that case and this is trivial, almost
to the point of cynicism, magnifying its nonessential details and
disparaging compulsion which was the underlying reason for
invalidity. A reading of the Court's opinion in that case along
with its opinion in this case will show such difference of
overtones and undertones as to make clear that the
McCollum case has passed like a storm in a teacup. The
wall which the Court was professing to erect between Church and
State has become even more warped and twisted than I expected.
Today's judgment will be more interesting to students of psychology
and of the judicial processes than to students of constitutional
law.