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JACKSON, J., dissenting.
guiding spirit should be that each freedom is balanced with a responsibility, and every power of the State must be checked with safeguards. Such is the spirit of our American law of criminal libel, which concedes the power to the State, but only as a power restrained by recognition of individual rights. I cannot escape the conclusion that as the Act has been applied in this case it lost sight of the rights.
ZORACH ET AL. v. CLAUSON ET AL., CONSTITUTING THE BOARD OF EDUCATION
OF THE CITY OF NEW YORK, ET AL.
APPEAL FROM THE COURT OF APPEALS OF NEW YORK.
No. 431. Argued January 31-February 1, 1952.-Decided
April 28, 1952.
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. 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. 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. 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 X. Y. 161, 100 N. E. 2d 463. On appeal to this Court, affirmed, p. 315.
Kenneth W. Greenawalt argued the cause for appellants. With him on the brief were Leo Pfeffer and Edwin J. Lukas.
Wendell P. Brown, Solicitor General, argued the cause for the Commissioner of Education of the State of New York, appellee. With him on the brief were Nathaniel L. Goldstein, Attorney General, and Ruth Kessler Toch and John P. Powers, Assistant Attorneys General.
Michael A. Castaldi argued the cause for the Board of Education of the City of New York, appellee. With him on the brief were Denis M. Hurley, Seymour B. Quel, Daniel T. Scannell and Arthur H. Kahn.
Charles H. Tuttle argued the cause for the Greater New York Coordinating Committee on Released Time of Jews, Protestants and Roman Catholics, appellee. With him on the brief was Porter R. Chandler.
Briefs of amici curiae supporting appellees were filed on behalf of the States of California, by Edmund G. Brown, Attorney General, William V. O'Connor, Chief Deputy Attorney General, and Howard S. Goldin, Deputy Attorney General; Indiana, by J. Emmett McManamon, Attorney General; Kentucky, by J. D. Buckman, Jr., Attorney General, and M. B. Holifield, Assistant Attorney General; Maine, by Alexander A. LaFleur, Attorney General; Massachusetts, by Francis E. Kelly, Attorney General, Charles H. Walters, Assistant Attorney General, and William F. Marcella; Oregon, by George Neuner, Attorney General, Robert F. Maguire and W’illiam E. Dougherty; Pennsylvania, by Robert E. Woodside, Attorney General, and Harry F. Stambaugh; and West Virginia, by William C. Marland, Attorney General, and Thomas J. Gillooly, T. D. Kauffelt and Eston B. Stephenson, Assistant Attorneys General.
Opinion of the Court.
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 class
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 expendi
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
Opinion of the Court.
ture 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.
Appellants, who are taxpayers and residents of New York City and whose children attend its public schools, 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,
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].
2 The First Amendment reads in relevant part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
3 See Stromberg v. California, 283 U. S. 359; Cantwell v. Connecticut, 310 U. S. 296; Murdock v. Pennsylvania, 319 U. S. 105.
* 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.