Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
An important First Amendment case in South Carolina will go forward after a federal judge refused to dismiss the case, saying the plaintiffs "have stated a facially plausible Establishment Clause claim." The ruling is on Lexis, so I can't give a link to it, but this is an important case brought by the Freedom From Religion Foundation against the Spartanburg County School District.
The case involves an unusual released time program. I think all such programs are unconstitutional but the Supreme Court upheld them beginning in 1952 in a case called Zorach v Clauson. In that case the court upheld school policies allowing students to be released from school for religious instruction. I regard this as one of the worst rulings in the history of the court.
But this precedent does not need to be overturned in order to overturn the policy in Spartanburg County. The current case is easily distinguished from the situation in Zorach because in this case, the school actually grants academic credit to students who take the religion courses - and their grade is determined by the organization that provides the religious instruction.
This quite clearly creates an entirely distinct problem under the First Amendment. The government is handing out a secular benefit based on the evaluation of someone's understanding of a religious subject as scored by a religious group. This is pretty clearly forbidden by the Establishment Clause. I'll be interested to see whether the case goes on or whether the judge's refusal to dismiss the case causes the school to decide to make some changes to bring their course in line with precedent.
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Comments
Original FRF press release from June.
Posted by: abb3w | December 22, 2009 9:20 AM
I agree that credit should not be granted (in public schools} for religious instruction, but what is wrong with letting kids leave school early, say, for Hebrew or Catechism? So long as it doesn't interfere with school and on the condition that they make up for time lost in class.
Posted by: Rodney | December 22, 2009 9:54 AM
Rodney @ 2:
How about the fact that American students are already falling behind the rest of the developed world? A world which will increasingly require American students who will be employable to increasingly have college educations, a more technical educational base, be able to think, and able to do self-directed research. Sacrificing secular education for religious indoctrination is part of the root cause problem, therefore it is certainly not worthy for public schools to condone or enable religious instruction on school time, and it certainly shouldn't supplant it.
And having participated in extracurricular activities, I unequivocally reject the premise such lost time can be 'made up'. Instead extra-curricular activities during school times reduces the amount of energy all students put into school, including those not participating. Not much is made-up because instead it just slows down and/or dilutes the whole process. We instead need to be debating extending* the amount of schooling students get and leveraging what the cognitive sciences are learning about how brains develop and learn, not supplanting ecucation with the very dogma that holds back human progress and threatens America's economic growth.
If parents want their kids to be religiously indoctrinated, let them do it during non-school time.
*Not necessarily longer hours within a day (which I oppose) or more days within a year (which I support); but even consideration of more years to reach a certain level and a higher mandatory level of education.
Posted by: Michael Heath | December 22, 2009 10:21 AM
Rodney-
Several things, some practical and some a matter of principle. First, what do you do with the kids who don't go? In most cases, they end up just sitting around doing a study hall because if the teacher moves on without the other kids, part of the class is behind and part of the class is ahead.
Second, the government should not be favoring religious instruction. Why have a program to mandate time release for religious education but not vocational education? Or work? The only possible purpose is to encourage religious instruction for kids, something the government has no business doing.
Third, the release is, of course, always for Christian instruction and not for any other kind. Can you imagine the uproar if a school decided to release Muslim students for religious instruction at a local mosque?
Posted by: Ed Brayton | December 22, 2009 10:28 AM
Rodney,
I don't know if this is true elsewhere, but where I grew up we had a large concentration of Jewish kids in our school. They all went to Hebrew school after our public school day was over. In fact I really have to wonder if there are districts that attempt to do this with anything but evangelical Protestant denominations. I know it is only anecdotal evidence, but I've personally never heard of a school doing release times for anything but Mormon, Baptist, Adventist, and other Protestant denominations. Catholics and Lutherans (seem) to do private religious schools instead. The Jewish seem to do it after school. Anyone have any knowledge of these groups doing anything during the day?
Posted by: dogmeatib | December 22, 2009 10:33 AM
I wonder people would say if FFRF suggested a release time program for kids to go off and learn about Robert Ingersoll, receiving a grade from the school, as determined by FFRF?
Posted by: chris | December 22, 2009 10:41 AM
I agree with what MH said. Even if in theory students are responsible for making up lost work, in practice it adds a burden to the students and to the teachers of the regular classes that are missed. And the likely outcome is that students will do, and the teachers will expect, less.
Yes, extracurricular activities sometimes require students to be absent for all or part of the school day, but generally these are one-time or limited exceptions. And virtually all schools have policies that condition extracurricular participation on satisfactory progress in the academic subjects.
If they make an exception for religious training, it would seem to open the door for training in everything else that is not normally a part of school curriculm.
Who is to decide what is a valuable non-school-academic activity worth allowing the students to pursue during normal instruction time, and what is not? Can the scientologists have a program? Martial arts training? Dance lessons? Video game playing? Soap operas? Training in astrology?
Posted by: Divalent | December 22, 2009 10:49 AM
Copy of the opinion is here.
Posted by: Ahcuah | December 22, 2009 11:04 AM
Michael,
Just a couple of quibbles, otherwise I agree with you fully. First, you oppose longer hours within an educational day, which I agree with you for the most part, but what about the evidence that full day kinder has a dramatic impact upon the fundamental learning ability of young children? Also, I agree with longer school years, or additional years, but in the case of the former, where is the money going to come from? First, you have the expense of the facilities being run for an additional couple of weeks, but second, and more importantly, you have the additional expense of the salaries. Teachers and administrators aren't going to add days to their contract/workload for free which is more than understandable given that, as a profession, they are grossly underpaid and under appreciated already.
Posted by: dogmeatib | December 22, 2009 11:41 AM
I grew up in Southeast Idaho, in a heavily mormon (like 70%) community. Adjacent to the school property for each of the high schools and jr. high schools there is a mormon seminary building. When I changed from private school to public school, I attended one of these Jr. Highs. Looking through the course listing, we saw one called 'release time' which was billed as being an opportunity for students to recieve instruction off-campus. So my mother signed me up for it, with the intention of having me use that time for tutoring at the nearby university. When we got the schedule from the registrar, it had me signed up for 'seminary'. So we asked why, and it turns out that when students sign up for 'release time', they were *automatically* also signed up for seminary. We asked to have that changed, and my mother explained why. The registrar then told us that we couldn't do that, that the only thing release time could be used for was to attend seminary classes at a facility adjacent to the school (of course, only the mormons have such facilities).
My mother, effectively a single mother of 2 teenagers, did not elect to fight the system.
Posted by: Morejello | December 22, 2009 12:18 PM
Christ on a cracker, Michael Heath, don't American children do enough already? Now you want to take away part of their summer vacation and make everyone stay in school until, what, 21?
In America it's a given that adults work non-stop all year for 2 weeks vacation/year and don't complain, but childhood is supposed to contain some time for, you know, play. Plus I don't know what advanced stuff you were learning in third grade, but in my day missing the last half hour of finger-painting to go to your piano lesson was not considered a big deal. Now releasing/crediting kids for religious instruction is obviously unconstitutional for you guys (not so here in Ontario, where we have publicly-funded Catholic schools, alas). But seriously, kids don't spend enough time in school? Really? Do you have any data to support this?
Posted by: KristinMH | December 22, 2009 12:26 PM
When compared to the kids of other industrialized countries, no, they don't do enough.
US kids spend anywhere from 10 to 30 fewer days a year in school. We're three weeks (13 days) below the world average. So, again, our kids are well below the average. As for school until they're 21? That's minimal college to be honest, but aside from that, many countries continue an additional year with their kids graduating at 18/19 instead of 17/18.
In each of these cases, the kids tend to do better on standardized tests, tend to be more prepared for university life, tend to compete better in employment markets.
Of course giving them those additional three weeks playing Xbox and Wii is just as critical.
Posted by: dogmeatib | December 22, 2009 12:33 PM
Michael Heath stated:
"We instead need to be debating extending* the amount of schooling students get and leveraging what the cognitive sciences are learning about how brains develop and learn, not supplanting ecucation with the very dogma that holds back human progress and threatens America's economic growth."
Any actual evidence to back up that idea? Are you saying that no religious ideas have helped bring us into the modern world? I guess it depends what dogma means. In certain contexts I would agree with you. But broad statements like this are unproductive and detract from you otherwise good point.
Posted by: King of Ireland | December 22, 2009 12:54 PM
Ed and all:
You are right. I forgot that there are areas where majorities of kids would take time off for religious instruction. My thinking was based on remembering that there were only a few religious kids around while I was growing up.
Posted by: Rodney | December 22, 2009 1:17 PM
KoI,
Problem is, in the modern context, the schools that are implementing these releases are generally doing so for the evangelical, fundamental denominations that tend to be anti-science which strongly supports Michael Heath's point. With the exception of Catholic private schools, which as a group tend to be quite good at their teaching of biology (or at least better than average), the more conservative literalist faiths that push for these releases tend to be anti-science and, while not necessarily anti-education, they tend to have a very revisionist dominionist leaning towards education.
Posted by: dogmeatib | December 22, 2009 1:43 PM
Ed,
I don't think it's entirely valid to offer "pragmatic" objections to Establishment Clause rulings. There will always be pragmatic objections regarding civil rights. Some get worked out in future rulings (To analogize with freedom of speech, e.g., yelling "fire" in a crowded theater, or the "fighting words" principle), some we just live with as the lesser of evils.
You write:
There is no right to child labor in the constitution. There is a right to free exercise of religion. And there is a difference between "encouraging" and not impeding. The ruling is problematic, and I empathize with the sentiments of the dissenting justices, but there is a very difficult question of where you draw the line when allowing students to be absent from school for religious observances. Right now we privilege the majority, so that major Christian holidays are taken off by everybody. (In some districts, where Jews are well represented, the high holy days are given too). But what about the child who wants to observe Diwali?
Perhaps an hour a week is too great. That's an argument that can be made. But the principle of allowing children free exercise of religion while not granting special privileges (they have to make up missed schoolwork, e.g.) is not an easy one to proscribe in a pluralistic society.
Posted by: Chris Schoen | December 22, 2009 1:49 PM
Yes. Encouraging would be setting aside time in the public school schedule for children to attend religious instruction. Not impeding would be allowing them to attend religious instruction before or after regular classes.
A big part of the problem is that in areas where the majority of children participate in the released-time activities, there is no missed schoolwork to make up, because the non-participating children are effectively held in detention for the duration. This reorganization of the school day, together with what amounts to a de facto punishment of non-participants amounts to a clear-cut establishment clause violation, not a matter of free exercise.
Posted by: DaveL | December 22, 2009 2:04 PM
Chris,
As supported by the case mentioned by Morejello @10, this is far more than free expression, this is specialized treatment for some religions and not others. In this case this is granting credit for religious students to take doctrinal classes in their specific faith that positively impacts their ability to compete with other non-religious students for class standing, GPA, etc.
It's one thing to allow for space and time for Muslim students to pray, or granting excused absences for Jewish high holidays, it's entirely another to give specialized instruction time to sectarian instruction in a public school. I happen to teach in a very conservative and Mormon area. Before school and after school (depending on the denomination) students go to their bible classes. When I was a kid my Jewish friends went to Hebrew school, AFTER school. Why is it these groups get special treatment and special access? Let's look at the Lemon test, what is the sectarian purpose? How is this not an advancement of religion and an excessive entanglement? Really this violates all three prongs.
Posted by: dogmeatib | December 22, 2009 2:04 PM
dogmeatib:
Don't you mean secular purpose? (Unless you're trying to trick some unsuspecting fundamentalist into giving away the whole plot, that is.)
Posted by: Mr. B | December 22, 2009 2:19 PM
That I do, thanks.
Posted by: dogmeatib | December 22, 2009 2:20 PM
I participated in a release-time program in NY and I was raised Catholic (not that it stuck), so these programs aren't exclusive to any particular religion or sect, nor could they be. If a Hebrew school wanted to offer instruction during the week and parents wished to enroll their children in it, the school could not stop them from sending their children. There is a balancing test between parent's rights and the First Amendment and the court struck the balance for parent's rights. I don't think that was a mistake. A parent should be able to remove a child from school for religious reasons without the child being penalized.
I don't remeber how many months we had release time, but I know it wasn't the entire school year. We would leave an hour or so early on Wednesdays, I don't remember what subject we would have had during that missed hour. I don't know why we couldn't have done the religious ed after school, it never made much sense to me unless it had something to do with transportation issues. But our grade in religious ed had nothing to do with our school grades. There is definitely an entanglement issue, if not an establishment issue with such a policy.
However, I don't think missing an hour of elementary school a week for a few months out of the year damaged my education. Michael Heath, do you really think release time programs are a reason why American children are so far behind other countries? The bigger problem is the raging anti-intellectualism at play in our country as exemplified by people like George W. Bush and Sarah Palin. Even people who aren't religious can be highly anti-intellectual. Just check out "Jersey Shore" or any of the VH1 reality TV shows. You could have put these people in school 10 hours a day, six days a week year round and I doubt they'd be any different.
Posted by: Liz | December 22, 2009 2:39 PM
Dogmeatib stated:
"KoI,
Problem is, in the modern context, the schools that are implementing these releases are generally doing so for the evangelical, fundamental denominations that tend to be anti-science which strongly supports Michael Heath's point. With the exception of Catholic private schools, which as a group tend to be quite good at their teaching of biology (or at least better than average), the more conservative literalist faiths that push for these releases tend to be anti-science and, while not necessarily anti-education, they tend to have a very revisionist dominionist leaning towards education."
Some do and some do not. As far as Science moving us into the modern world and beyond it no argument from me. But no all religion or evangelical versions are anti Science. I understand Michael's overall point and have been saying for years that we have the worst schools in the world. It is because their is no respect for teachers and the educational process. NCLB blamed the kids lives on the teacher and they all believe it now. Liberty has turned into license, the very thing Locke warned against.
With that said, I essentially agree with you guys. I would caution against broad statements though. I do the same thing a lot and it detracts from points I am trying to make too.
Posted by: King of Ireland | December 22, 2009 2:53 PM
Dogmeatib @18 wrote:
The Zorach ruling is patently *not* specialized. Whether selective enforcement makes it so is a different concern. We can't judge the law because it is inequitably applied. The example Morejello cites seems like an abuse of the ruling, not an exercise of it, but if we're going to exchange anecdotes, Liz @21 is a strong counterexample.
Regarding the impact on academics, schools can take measures to ensure that missed material is made up. This is only as big a deal as we make it.
I don't see any Lemon Test issues here. The secular purpose is promoting equal protection under the law. We already permit this in allowing students to leave school for religious observances. Extending this to instruction is a matter of degree. The question remains where to draw the line. An hour a week may be too much (pace Liz @21) but the principle itself is not constitutionally unsound.
Posted by: Chris Schoen | December 22, 2009 3:02 PM
What bothers me about these programs is that kids may see themselves being treated according to different sets of rules, according to their parents' religion. This could be a bad example that undermines their ability to understand the concept of equal rights and equal justice.
Kids are quick enough, and merciless enough, to single each other out based on all sorts of superficial differences, without any encouragement from the adults in their lives. (I remember the majority of my grade-school class making fun of the Jewish kids, then the atheist kids, then the kid whose ears stuck out.) The last thing kids need is adults reinforcing such attitudes.
Posted by: Raging Bee | December 22, 2009 3:05 PM
First, we're talking about the specific case here and other examples. So the Zorach ruling, while it is the precedent, in most of these cases, is not the precedent in this case. Second, as Ed has alluded to, there is a fatal flaw with the Zorach ruling in that small local school districts can and do create de facto special religious circumstances that give special rights to some groups but not to others. That is strongly supported both by this case and by morejello's comment.
In much of the country you have small districts, 1000 students or less, with very homogeneous populations generally ascribing to one or two religious traditions. That the Zorach ruling invites these abuses does indicate that there is a flaw.
Second, I would argue that, much like Yoder, it is a flawed ruling. What compelling interest is there that your student must miss school regularly for religious indoctrination? Why can't they attend before or after school? Why don't you home school or send them to a parochial school? There is a huge difference between an accommodation, brief time for prayer, days off for religious observation, etc., and regular reorganization of school schedules.
The combination of these two factors is what creates the problem here. In this specific case we see special treatment for a specific religious belief. It already had special treatment, the class time in the first place, but now because student involvement wasn't at the level where the religious wanted it, they have taken to promoting it (letter to students) and incorporating it into the grade structure. This is a triple threat of Lemon, it violates all three prongs. There is no secular purpose to incorporating religious training into the school day. It openly promotes religion and encourages students to participate in a specific faith, and finally it ties the grades of students and their competition in class ranking, etc., to a religious based grade. Three strikes, you're out.
That's what these programs invite. Many of the cases against them don't involve an opportunity for free expression, instead they involve special treatment for specific faiths and those who don't participate are penalized. We see this in morejello's comment, we see this in this case and others.
The fact that we see an increase in the frequency and excessive nature of these cases implies that the precedent itself is flawed. Plessy established that separate but equal facilities was appropriate and non-discriminatory. By the 50s the farce that was "separate but [not]equal" was exposed as a false compromise. It very well may be that this precedent needs to be reexamined to determine where the borders lie, what is a reasonable accommodation versus a government sponsorship of religion might need to be reexamined.
Posted by: dogmeatib | December 22, 2009 3:32 PM
KoI,
Not arguing, honestly asking, what programs like these are you aware of are conducted by religious groups that aren't fundamental, young earth, creationist, etc.? The site for this organization suggests that it has ties to creationist (IE anti-science) teaching through it's ties to CSI [Christian Schools International]. I know the Mormon church has a strange but generally seen to be young earth creationist view. Most other evangelical Christian sects tend to be creationist (whether YEC or OEC). I'm not aware of any of these organizations that accept evolution (for example). Are you? Do you have examples?
Posted by: dogmeatib | December 22, 2009 3:48 PM
Dogmeatib,
My comments do not apply to the South Carolina case, which I agree is blatantly anti-constitutional because it applies school credit to religious instruction. I was following up on Rodney's comment as it pertains to Zorach only, which Ed singles out as also wrong.
I still do not see how you can draw a line in the sand between accomodating specific religious observance, such that it warrants an absence from school, and "regular" instruction. I have not seen either you or Ed suggest a criterion for separating the two, despite your insistence that there is a "huge" difference. Part of the problem, I think, is that you want to take the most egregious instances of a program allowed by the Zorach ruling for the ruling itself.
Your "separate but equal" analogy is contradicted by your argument that parents who don't like the prohibition on time release can send their kids to religious/parochial/home schools. Indeed they can, but is this really an improvement on the benefits of secular, public schools, minus one hour per week?
What primarily concerns me is the sentiment expressed by Raging Bee @24 suggesting that the best way to protect difference and minority rights in a pluralistic society is to pretend they don't exist. That is not in the spirit of the first amendment, which attempts to protect against persecution both of and by religious groups. Too often people on both sides of these disputes want to regard only one side of this equation.
Posted by: Chris Schoen | December 22, 2009 4:10 PM
What primarily concerns me is the sentiment expressed by Raging Bee @24 suggesting that the best way to protect difference and minority rights in a pluralistic society is to pretend they don't exist.
That's a misinterpretation of what I said. I was not talking about protection of minority rights in general; I was merely questioning the wisdom of allowing certain people's kids to be exempt or partially exempt from rules and policies that were allegedly written and applied for the more-or-less-equal benefit of all participants. If it's necessary and good for kids to be in school for a certain number of hours each day, then how is it good for some kids NOT to be in school for the full legally-required number of hours? If getting out of school early isn't harmful to those kids, then maybe that legally-mandated number of hours really isn't necessary for the rest of the kids either, no?
Posted by: Raging bee | December 22, 2009 4:27 PM
As a public school teacher, I'm guessing that what happens on the elementary level is teachers are not allowed to teach anything new during this time.
Every Wednesday 4 of my kids leave for G&T class. During that 90 minutes I'm not allowed to teach the other 18 kids in my class. I can tutor, but not teach new things or anything where I take a grade. Because Wednesday is also PEP* day I only have that class for 2 hours and 15 minutes.
So not only are the released kids missing instruction, I suspect the kids who stay are just being warehoused.
*Kids have 90 minutes of specials (art, music, PE, Library instead of 45 minutes and the teachers have a meeting with the Core team to get schedule help for students who are struggling, request materials, and get extra training).
Posted by: Kimberly | December 22, 2009 4:39 PM
Well, if we must make it explicit, here it is: it ceases to be a free exercise issue and becomes an illegal establishment the moment it disrupts the rest of the class.
There's theoretically no problem with a few students absenting themselves from a portion of the school day and catching up on the material later. This is not what is happening, in case you missed my previous point. In many cases, however, what is happening is that the school day is being essentially put on hold while students attend religious instruction. This "study hall" as Ed puts it is from a student's perspective very like detention, which is understood to be a punishment. Further, the suspension of instruction sends the message that the school considers this religious instruction more important than its actual curriculum, since the former is allowed to interrupt the latter.
Now, perhaps you might be able to explain how holding religious instruction before or after school hours is a material restriction on free practice of religion?
Posted by: DaveL | December 22, 2009 4:41 PM
Kimberly,
What is G&T class?
Posted by: argystokes | December 22, 2009 4:43 PM
Gin & Tonic, obviously. What school did you go to? ;)
At least the effects of a Gin & Tonic class would wear off in a few hours.
Posted by: DaveL | December 22, 2009 4:46 PM
Chris SChoen wrote:
Surely you're not suggesting that the free exercise clause requires that schools allow students to be released during the school day to go for religious instruction? I think that goes way beyond any argument I've ever heard. Zorach merely concludes that it does not violate the Establishment Clause; to argue that it's required by the Free Exercise clause strikes me as entirely wrongheaded.
Posted by: Ed Brayton | December 22, 2009 5:16 PM
Dave L,
At what point does this occur? The same disruption occurs if there are (occasional) services that conflict with the class schedule. But you allow this as legitimate. Where should SCOTUS draw the line? You haven't offered any generalizable standard.
Of course it isn't, all things being equal. But mandating that it must be so held may be. "School hours" are not a matter of natural law, but a variable social construction. Lots of things must compete for the time before and after. There is no reason to assume that it's fair to privilege these hours without exception, especially when the provision for time release programs warrants that any missed materials must be made up. (There is a presumption that American students are undereducated, but this seems to me more of a judgment than an empirical fact. Is competing for jobs really a moral desideratum trumping all others? It is one thing to say that the state should not endorse particular metaphysical beliefs. It is another to so monopolize their time that there is no room for metaphysics even if consonant with a secular upbringing.
It's potentially messy and inconvenient, I grant you. But those are not good reasons to consider abridging rights.
Would you demur if it were an hour a month, rather than once a week? My general point is that there are competing interests that must be balanced, and that determining the balance is more important that trying to oversimplify the needs at issue.
Posted by: Chris Schoen | December 22, 2009 5:20 PM
argystokes: G&T in education parlance is Gifted and Talented.
Posted by: Mr. B | December 22, 2009 5:23 PM
Raging Bee,
The presumption of the policy is that there is no net difference in quantity of education. Missed class time must be made up. And remember that we're talking about a maximum of one hour a week. Perhaps that allotment is too high. But the differential, regardless, is not as substantial as it is being made out to be.
At any rate, your earlier rationale was about not encouraging kids to notice difference, which is what I was responding to. If anything, we should be promoting tolerance and understanding of differences, rather than allowing the natural xenophobia of children and teens to set the tone.
Posted by: Chris Schoen | December 22, 2009 5:27 PM
At the point where the teacher stops teaching and puts the kids in a holding pattern.
Did you miss the part about the specific constitutional prohibition on the establishment of religion?
Nobody's mandating that they be held at all, let alone during which hours they're held. The question is whether or not we're going extend them special privileges, putting other students' education on hold, because this activity wears the nametag of 'religion'.
Are you really that dense? What missed materials? We're talking about deliberately halting classes, giving remaining students what amounts to detention, so that there won't be any materials to be made up.
Hold on- non-participants are the ones being left in a holding pattern, and its the participants whose time is being monopolized? At least if you abolished released-time religious instruction, everyone's time would be equally monopolized, rather than according special privilege to participants and making that privilege amply clear to the remainder.
Would you be amenable to the police searching your home without a warrant, as long as it only happened once a year?
The interests are balanced by holding religious instruction outside of school hours. That way no one's time is any more or less monopolized than anyone else's, no one is accorded any special privileges, and nobody is materially restricted in the free exercise of their religion.
Posted by: DaveL | December 22, 2009 5:35 PM
Well, when I attended a German gymnazium (college-prep middle and high school) back in the day, we went to classes six days a week and only had two months off in the summer, and attended for 13 instead of 12 years total. However, school was from 8-1 instead of 8-3 with lunch. I forget how long any other holidays were.
(We also walked ten miles uphill each way in the snow...)
Posted by: ildi | December 22, 2009 5:40 PM
Seriously, the idea that American kids are at school too much is ridiculous, and I say that as a product of the American educational system. American spend less time than most other industrialized nations, and are worse off for it. Let's not be silly.
Posted by: Kyorosuke | December 22, 2009 6:14 PM
DaveL claimed:
Is this what Spartanburg County is doing? I missed that.
My general take on Constitutional issues is that if the government is changing the rules as a pretext to do that which would otherwise be unconstitutional, it should be rejected as well. The issue here is not the religious school and training: If that is truly what the parents' want, fine. The issue is providing the busses to transport kids, which is clearly unconstitutional if done outside of the school schedule. This is a pretext, and a rather shabby one. Toss it out.
Posted by: kehrsam | December 22, 2009 6:16 PM
Can you imagine the uproar if a school decided to release Muslim students for religious instruction at a local mosque?
It has happened in some districts, and it did indeed cause an uproar.
Posted by: Mike Crichton | December 22, 2009 6:28 PM
Actually it's quite easy to draw a line. What is a reasonable accommodation, what isn't? If I remember correctly the Jewish high holy days only amount to two days of absences in a school year. Quite reasonable to simply excuse those two absences, allow the students to make up the work, etc. Devout Muslim students, if they schedule intelligently, will likely only need one or two times a day for prayer. Both of these are reasonable accommodations.
Revamping the entire school schedule, creating classes, eliminating classes, putting kids in a "study hall," sending letters home promoting a religious program, granting grades for attending religious instruction, busing kids to religious programs, not reasonable accommodations. Allowing religious students to participate in programs but not allowing non-religious students to participate in similar non-sectarian programs, not reasonable. To be honest I'm not certain that having the kids leave campus for an hour, once a week is even that reasonable. No one has provided any evidence whatsoever that these programs couldn't be done, without any hardship or disruption, during non school time. We've also seen numerous examples of abuses by supporters of these programs which suggests that the allowance allowed by Zorach may have been an error in judgment.
As Ed commented, Zorach merely says you can do it, not that it's a constitutional requirement that such programs be offered on demand. It seems very much like you're arguing that if a parent group approach the school and demand such a program that the school is in some way required to provide it, that simply isn't the case.
It is an improvement if the kids who don't participate in the program are punished which is quite often what happens. Over the last few months Ed has posted a couple of these cases (and similar Bible study cases). Over and over again we see where the allowable practice is trampled by the desired practice. We see kids who don't want to participate singled out, segregated, subtly punished in ways that any kid could tell you is a punishment. You keep arguing for the rights of the kids who wish to participate while ignoring the rights of the kids who are, over and over again, punished and ostracized for not participating. This is the same reason for the McCollum case in the first place, this is the reason why Zorach was brought to court. Justice Black was right in his dissent and even the court admitted in its ruling that the program might be "unwise and improvident" at the same time they declared it wasn't a violation of the constitution. If kids are segregated, singled out, ostracized, or punished for not participating, then these programs are violating their rights. On top of that, quite simply, the fundamental idea of allowing some kids to leave for religious services while others remain to work is, at best, questionable.
Posted by: dogmeatib | December 22, 2009 6:59 PM
Ed wrote:
Maybe, but I'm beginning with a much more modest argument than that. It's based on the universally agreed on principle that *some* religious absences from school are valid. If a minority religion had a traditional 11AM service on an annual holy day, for example, I think everyone here would prefer that the kids attend that service, and make up the lost work later, rather than closing the school. In a pluralistic society there is no better option.
Building from that, I'm asking what specific criterion distinguishes such a case from the absences permitted by Zorach, which may be up to an hour per week. (It is not a matter of religious instruction only, since the decision also specifically references "devotional exercises.") In this regard it is in fact a "free exercise" issue.
Justice Douglas expressly observes this in his opinion, citing the examples of a Jewish student excused for Yom Kippur, or a Protestant student for a Baptismal ceremony, and adds "Whether [a teacher approves these absences] 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."
I am appealing to this logic. If something changes "the character of the act," what is it? Dave L has written unconvincingly that it is the "disruption;" but this is not so easily quantifiable, nor is it evident that it is an appropriate standard for drawing the line on a civil rights issue.
We can't argue from consequences, such as the fact that many release programs result in a de facto detention. This may be true (though I think it is hardly unaddressable), but this, too is not a valid objection to a civil rights issue. Inconvenience is not a defense, here.
Nobody should interpret this as unqualified support for a release time program. I agree with everyone here they are liable to be problematic. But it is not clear to me they are unambiguously unconstitutional, at least not any more so than the alternative. Taking conflicts like this seriously means refusing to over-simplify them.
Posted by: Chris Schoen | December 22, 2009 7:05 PM
Dogmeantib @42
Nothing is "provided" by Zorach except for the right to certain school absences, under certain circumstances. Let me state again I have no interest in defending the Spartanburg policy.
This also means I'm not defending:
all of which quite clearly violate the Establishment clause, and are not in the purview of the Zorach decision.
The objections in your final graf to the consequences of Zorach are reasonable, and I agree with some of them. Nevertheless in a constitutional democracy we have to begin with first principles and make the best compromises we can. If there are negative consequences let's deal with them so that they become wiser and more provident. But let's be sure not to selectively privilege some rights because they have messy consequences. This was the kind of "pragmatic" thinking that denied franchise to racial, sexual, and economic minorities for so long.
Posted by: Chris Schoen | December 22, 2009 7:17 PM
I don't know about the Spartanburg case in particular, though I would be shocked if they weren't. I was referring to released time programs in general under Zorach, which did in fact involve the claim of classroom disruption.
http://supreme.justia.com/us/343/306/case.html
(highlighting mine)
Chris Shoen:
This is nonsense. First , we need not quantify anything in order to apply a "disruption" test. How do you quantify purpose, effect or entanglement? In other areas of civil rights law, how do you qualify (for example) a "chilling effect" on free speech?
Second, we can, do, and indeed must argue from consequences in constitutional matters. That's why Lemon has an "effect" prong. That's why Brown v. Board of Education could find that separate was not equal. History teaches us that we cannot have justice in the real world by ignoring real-world effects.
Third, it is at best disingenuous to characterize de facto detention as an "inconvenience". It sends a message to students about which activities are more important (religious instruction), whose time is more important (believers'), and effectively punishes them for non-participation in religious activity.
Posted by: DaveL | December 22, 2009 7:37 PM
Why not deal with the negative consequences of this case by holding religious instruction outside school hours? Seriously?
How does your argument not privilege the Free Exercise Clause over the Establishment Clause?
Like the actual violation of the rights of others...
What? How? The history of this country is littered with laws attributed to certain principles and purposes on paper but resulting in manifest injustice in practice. As they say, the law prohibits both the rich man and the pauper from sleeping under bridges. Are you suggesting that actually addressing those injustices somehow denied franchise to minorities?
Posted by: DaveL | December 22, 2009 7:50 PM
Dave L. @ 45 and 46:
Because allowing religious student absences is not an endorsement or promotion of religion. The two religious clauses are balanced around the concept of allowing free exercise without compelling or promoting it. These two interests can be simultaneously satisfied.
Conceded. But I stand by the rest of my statement in that graf. Disruption is not a standard to hold against protection of a right. (See below).
A great deal of your argument presumes that students who remain in class while others are excused will suffer. This seems unduly fatalistic to me and not a little bit petulant. Are there any alternatives to having a "study hall" when a portion of the class is absent? Teachers and administrators bear a little responsibility for responding to changing conditions creatively. Resources can be devoted to the problem. If they are not we should specify why they have been denied. If this all seems unrealistically idealistic, it is, but it at least demonstrates that this is a shared problem, not just a nuisance created by religious groups, who should be given the benefit of the doubt as a starting place (though I agree that such programs as we are discussing should be scrutinized for willful hostility to secular education, and even that a kind of Lemon test could be applied to see if meeting during school hours were necesitated by truly religious, rather than anti-secular, reasons).
This argument can be applied both ways (the poor man = the secular student, or the poor man = the religious student). Your solution is to tear down the bridges, in that you won't recognize a fundamental right to religious observance that occurs during school hours. If you can grant that much, we can talk about the extent to which it is reasonable to apply it, and who it may impinge upon.
I'm inclined to agree, except that: (1) the Zorach ruling does not restrict itself to "instruction." (2) Even if it did, I have not seen any standard offered to distinguish between the two. (You earlier compared getting out of class for a religious ceremony to illegal search and seizure, which is not taking this question "seriously.")
Furthermore, one can agree that religious instruction *should* be held before or after school hours, without conceding that we have constitutional grounds to deny attendance at such instruction. Other instruments of persuasion can be brought to bear, here. We can agree on the problem, but doing so doesn't obviate the Bill o Rights.
Posted by: Chris Schoen | December 22, 2009 8:43 PM
No, I do not accept your analogy at all. There is a clear difference between allowing an excused absence for a religious holiday and structuring the school week every week to allow students to leave the campus for religious instruction. A religious holiday only happens once per year and they are excused for the entire day because the holiday takes up the entire day. But there is no reason at all why religious instruction has to take place during the school day. It is no burden at all on the free exercise of religion to refuse to excuse a student for religious instruction that could just as easily take place after school hours or on the weekends (that is, after all, when churches are in session). This is in no way a free exercise issue. No one has a right to leave school for religious instruction when there is no rational reason why such instruction should interrupt school at all.
Posted by: Ed Brayton | December 22, 2009 9:22 PM
Now, let's not overdramatize the situation. Students need not "suffer" in order to be made to understand they are being punished for not participating, that religious instruction is the preferred use of the time in question, or that the participants time is more valuable. None of these outcomes is constitutionally permissible.
Certainly there are alternatives. For instance, instruction could continue apace. Perhaps some other form of enrichment activity could be substituted that would not communicate to students that they are being punished and/or made to wait on their participating peers.
The problem is with Zorach and programs that follow its model is that they do not require any such remedies.
The Lemon test is meant to screen government action for religious purposes and intentions, not anti-secular ones. Willful hostility towards secular institutions is not required to breach the Establishment Clause.
Besides which, I can't help but wonder how the suspension of secular schooling to promote religious objectives could be considered not hostile to secular education.
No, my solution is to recognize that he rich don't need bridges for shelter. You may be trying to imagine some hypothetical religion that requires, as a tenet of faith, that children leave their school during school hours, but in the real world I can think of no such creed, certainly none that approve of public schools. In the real world, nobody is prevented from practicing their religion by not being being allowed to hit "pause" on the public schools on a regular basis. Conversely, in the real world, we really do have non-participating students being made to wait in a holding pattern for their participating peers to return.
In this case the Establishment Clause provides all the grounds we need. If you concede religious instruction *should* happen before or after school hours, and that nobody here in the real world is actually being materially prevented from exercising their religion by doing so, then there is nothing left on the Free Exercise side of the scale to balance it with.
Your attempt to relate the released-time programs with occasional absences for religious holidays is spurious. To add to Ed's comments, children participating in released-time programs have their attendance tracked and reported back to the school; this is not counted as an absence. Not so for parents pulling their children out of schools for religious holidays.
Posted by: DaveL | December 22, 2009 10:20 PM
At any rate, your earlier rationale was about not encouraging kids to notice difference, which is what I was responding to.
Again, you're misunderstanding me. My rationale is not about "not encouraging kids to notice difference" (kids notice difference anyway -- that can't be stopped); it's about not encouraging kids to think that different people follow different sets of rules.
Posted by: Raging Bee | December 22, 2009 11:04 PM
Ed,
I accept this as a tentative standard. But I still think clear cut cases like regular religious "instruction" don't encompass all the possibilities proscribed by the ruling, which also references religious observances ("devotional exercises"). I can anticipate the objection "your religion has too many holidays." That's really the heart of my objection, not a desire to defend instruction during school hours, per se.
I'm also not sure I'd want to be the one to have to decide what a "rational reason" is or is not for having a religious absence during the school day. Maybe the Douglas Court went too far, but I'm not sure I'd easily be able to say what part of that ruling to prune back.
Posted by: Chris Schoen | December 23, 2009 12:04 AM
There are a couple of even-handed ways to balance public school schedules with religious holidays. One is to tell students and/or parents that "you can be excused for religious holidays, but you will be responsible for making up the work." That is, it doesn't count as truancy, but if your religion says you can't be at school this particular Thursday, you have to ask for the assignments, reading, etc. and do them on your own time, not slow your classmates down. (When a student fasts for Ramadan, we don't close the school lunchrooms.)
The other approach is to give everyone the time off, and let them (or their parents) decide what to do with it. Where I live, the public schools will be closed Friday for Christmas, and they were closed a few months ago for Rosh Hashanah. Everyone gets those days off, regardless of their religion or lack thereof. The equivalent here would be to end the school day an hour earlier on Wednesdays, for everyone. So, if your parents wanted you to study religion, okay. If they wanted you to study Korean, also okay. Or drawing. Or if they just told you to go play in the park, or go home and read a book or watch old sitcoms.
I don't think it's an accident that, over and over, we're asked for released time only for religious classes, instead.
Posted by: Vicki | December 23, 2009 4:33 PM
A couple of the comments here suggest to me that the readers see this as a situation where the kids are allowed to skip a regular class (math, english, whatnot) and leave to get religous instruction. My understanding of the Spartanburg case suggests (and my first hand experience with public education in SE. Idaho certainly is this way) that this is not the case. The 'released time' is a regular class period that exists as a planned part of that child's every day schedule just like any elective class. IE: period 1 - math, period 2 - english, period 3 - release time, period 4 - PE, etc..., so it's not like a regular class is being disrupted for a subset of that class to leave.
I'm not arguing that it's the right thing to do either in theory or in practice, but it's not disrupting every child's education for a select few to recieve religous instruction.
If this is an incorrect understanding of the Spartanburg case, please inform me better.
Posted by: Morejello | December 23, 2009 5:44 PM