Dispatches from the Creation Wars

I wrote a few months ago about a lawsuit filed against a released time program in the schools in Huntington, Indiana. The program releases students from class to attend a weekly Bible class taught by ministers in trailers on the school property. A federal magistrate judge has recommended that a preliminary injunction be issued against the program while the case is heard (which seems odd to me; apparently the district judge asked a magistrate judge to hear arguments and issue a report and a recommendation). You can read the magistrate judge’s report here.

There are three issues in the report – whether the plaintiff has standing, whether the policy is likely to be found unconstitutional and therefore whether a preliminary injunction should be issued, and whether the case should be dismissed. The magistrate judge says yes on the first two counts and no on the third. On the establishment clause question:

Thus, the case here is essentially stripped to this ultimate question – is religious instruction to elementary students on public school property during the school day, in a churchowned mobile classroom, violative of the Establishment Clause? The answer is found in the over-arching principle articulated in McCollum; that is, “the use of tax-supported property for religious instruction” and the “utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith[,]” makes the program unconstitutional.

Much is made in the report about the distinction between allowing a released time program that meets on school grounds and one that meets off school grounds, the latter of which was upheld in Zorach v Clauson. And that is what the judge in this case must do, since that is a distinction made in many precedents. But this only shows the essential incoherence of this area of jurisprudence.

It should make no difference whatsoever whether the classes are held on school grounds or off school grounds. The fact that the school allows students to get out of their legally required attendance as long as they spend that time getting religious training is, in my view, a clear constitutional violation under either the Lemon test or the endorsement test.