RELIGIOUS EDUCATION IN THE SCHOOLS

RUSSELL N. SULLIVAN*

For many years, the courts have been trying to decide the appropriate relationship of the church and religion to the public schools and education. The dominant religious group in the community has usually pressed for the inclusion of some form of worship and religious education in the school system. This has ranged all the way from reading of the Bible as a morning exercise to direct support by tax funds of parochial schools. Since most of the programs express the will of the great majority of the citizens of the school districts, relatively few actions have been commenced to restrain or limit these programs. Further, since state constitutions have had the more specific provisions on the separation of church and state, few cases have reached the Supreme Court of the United States.

Beginning shortly after the turn of the century, the churches, faced with a declining attendance at the Sunday school, urged the inclusion of religious education in the school program.2 They argued that the secularization of public education results in inadequate preparation for life, for it ignores the important part which religion plays in the experience of individuals in the United States. Separating the teaching of religion and religious ideals entirely from the public school system and assigning this important aspect of education to after-school time or to Saturday or Sunday leads the child to regard this aspect of his education as unimportant. Thus the purpose of the weekday church school is stated by the Vermont Council of Churches as follows: "To round out a more satisfactory educational experience of the pupil by guiding him in a discovery of the spiritual and Christian elements of life." The churches therefore insist that a satisfactory religious education program is one which is carried on in "public school time." This is necessary if the child is to understand the essential unity of his education and the part which religion

* Professor of Law, University of Illinois College of Law.

1 "Parochial" as used in this article means all church schools and is not limited to the Roman Catholic schools.

2 MARY D. DAVIS, WEEKDAY CLASSES IN RELIGIOUS EDUCATION (U. S. Office of Education, Bull. No. 3, 1941).

8 See THE RELATION OF RELIGION TO PUBLIC EDUCATION-THE BASIC PRINCIPLES, BY THE COMMITTEE ON RELIGION AND PUBLIC EDUCATION OF THE AMERICAN COUNCIL ON EDUCUATION (American Council on Education, 1946). Reprinted, 42 RELIGIOUS EDUCATION 129 (1947).

* Quoted in DAVIS, op. cit. supra note 2, at 3.

"The term 'Public School Time' is used to designate the time children usually spend in the public schools. The term does not imply that school time belongs to the state; it does not imply that the state has authority to compel children to attend state schools; nor does it imply that parents may not send their children to schools other than state schools for part of, or for the entire, school time." JEROME C. JACKSON AND Constantine F. Malmberg, RelIGIOUS EDUCATION AND THE STATE 15 (1928), quoted in THE WEEK DAY CHURCH SCHOOL I (Educ. Bull. No. 601, The International Council of Religious Education, Chicago, 1940).

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plays in it. So runs the argument of the sponsors for the weekday church schools. The argument proved to be very persuasive. In 1946 weekday religious programs in schools were in operation in forty-six states, with an enrollment of over 2,000,000 students in more than 3000 different communities. In some of these states there is specific statutory authority for the program, while in others reliance is placed on a ruling of the attorney general; in still others, action of local school boards has been permitted. In 1940, classes were held in fifty-nine different communities in New York, twenty-nine in Minnesota, twenty-three in Ohio, eighteen in Illinois, and in lesser numbers in the remaining states. A program so widespread clearly seerns a response to a felt need.

What is this weekday church school? To this question there is no single answer, for there are about as many differences as there are participating school systems. There are some elements of similarity which can be described. Essentially there are three different time arrangements, known as “released time,” “dismissed time” and "free time." "Released time" means that the time is included in the school day and that pupils are "released" from their regular school work for a class in religious education. Students who do not attend these classes continue with other school work. "Dismissed time" describes the dismissal of the whole school from thirty to sixty minutes early one or two days a week in order that those who desire to do so may attend religious education classes. "Free time" means that the classes are conducted before or after school hours or on Saturday. Since the school cannot control the pupils' use of free time and since it seems fairly clear that the school board may authorize the shortening of one or two school days per week, "released time" is the only program the legality of which is questioned.

"Released time" classes may be conducted in church buildings, school rooms, or other buildings rented for the purpose. The essential characteristic of "released time” is that the pupil is released from his regular school work for a period of sixty minutes or less upon the written request of the parent. "Attendance is elective as far as initial choice of parents is concerned, but it is usually compulsory for all children whose parents have signed request cards for dismissal from school for religious education." The compulsory attendance makes the plan very attractive to church leaders, for it not only assures regular attendance of the pupils whose parents are anxious to have them in the classes, but it also induces other children to want to joint the classes. The advantages of "released time" are summarized as follows:

1. It is regular and not subject to competing activities, as is any other time. Even Sunday, traditionally known as "church day," is used for vacations and outings, for school and social activities.

2. It makes regular religious training a part of the child's week-day life.

24 INT'L J. RELIGIOUS ED. 36 (April 1948).

7 DAVIS, op. cit. supra note 2, at 5-6.

Id. at 13.

THE WEEK DAY CHURCH SCHOOL, op. cit. supra note 5, at 1. (Italics supplied.)

3. Many unchurched children thereby receive religious training. They want to go to the church with their schoolmates and ask their parents to sign release cards. In the city of Wichita, Kansas, fully one-third of the pupils are not receiving any other religious training.1

The advantages which inhere in the use of public school rooms for the program are not essential to the success of the classes. The primary element is the use of time during the school day. If the location of the school building makes the trip to a church long or hazardous because of dangerous street crossings, attendance will be improved by securing permission to teach in the school building. Heating costs are saved, although a nominal sum may be paid for the use of school rooms to forestall the criticism that public school money is being used for religious education. Discipline is simplified, for the pupils remain in the school environment. The classes receive their largest enrollments where all of the favorable conditions are present.

A typical "released time" program was conducted in the Champaign, Illinois, public schools. The ministers of the community formed a Council of Religious Education to prepare a curriculum to be used in the schools. All denominations and faiths were invited to participate. The Champaign Board of Education gave its consent to the use of school rooms thirty minutes each week for religious education of grade school pupils.11 The council hired a teacher to teach the Protestant classes. The classes for Catholic and for Jewish children were taught by members of the clergy when there were sufficient children to make up a class. It is important to note that there were three class groups, one for the children of each major division of the religious community. The teachers were selected and approved by the council and received no payment from the Board of Education.

The plan of operation was simple. The regular teachers during the school day explained to the children in their respective rooms that these classes would be offered and that children whose parents signed the cards would be released from regular classes to attend the religious education class thirty minutes per week. The cards were then distributed and the children were directed to take them home for their parents' signature. When the signed cards were returned, the council was advised of the number in each room and the Protestant teacher then arranged the schedule of classes. On the day and at the hour the class was scheduled, the religious education teacher came to the classroom, and if most of the students had returned cards, the religous education class was taught in that room; the regular teacher and any pupils not wishing to attend retired to some other room in the building. Some rooms had 100 per cent participation in the class. During this period, the regular

10 Id. at 15.

11 The facts are summarized by the trial judge in the abstract of the record, p. 78, McCollum v. Board of Education, 396 Ill. 14, 71 N. E. 2d 161 (1947), 333 U. S. 203 (1948). Since there was no controversy over the plan, page references to the abstract will not be made for all of its details. The abstract of the record and all of the briefs in the case were supplied to the writer by Mr. John Franklin of the Champaign, Illinois, bar, counsel for the Board of Education. The briefs and discussions with Mr. Franklin contributed substantially to this paper.

teacher did not continue to teach the regular subject matter to the children under her direction, but she gave individual help to those who needed it.

In the summer of 1945, this plan was challenged by the mother of a boy in the fifth grade of the Champaign schools. Mrs. Vashti McCollum sought a writ of mandamus to compel the Board of Education to discontinue the teaching of religious education in the schools and to prohibit the use of the school rooms for this purpose. She alleged that the plan set out above violated the Illinois statutes, the Illinois constitution, and the Fourteenth Amendment to the United States Constitution. She charged that the program amounted to sectarian religious instruction since there were separate classes for Protestants, Catholics, and Jews. Finally, she alleged that though voluntary on its face, the plan was compulsory because her son was the only one in the room who did not enroll in the classes and, being thus singled out from his fellows, he was coerced into joining the group. The classes, although voluntary in the first instance, became compulsory for the child after the parents had signed the request for release from regular school work for that period.

Counsel for Mrs. McCollum relied heavily on Ring v. Board of Education,12 decided by the Illinois Supreme Court in 1910. In that case, the petitioner sought a writ of mandamus to compel the board of education to cause to be discontinued the reading of the Bible, singing of religious hymns, and reciting the Lord's prayer as regular exercises in the public schools. Since these acts all took place in the regular school time in the regular schoolroom, all of the children participated in them. The petitioner, a member of the Roman Catholic church, insisted that this amounted to religious worship in violation of the state constitution. The majority of the court decided that the reading of the Bible is sectarian, for the school authorities used the King James version, which is unacceptable to Catholics, who use the Douay version. Both of these are sectarian in the eyes of the Jews. While the majority observed that Illinois was a Christian state and the majority of the people were Protestant, one of the purposes of the constitution was to protect minorities against compulsory conformance to the wish of the majority. On the question of compulsory participation in the exercises, Justice Dunn wrote:

The Kentucky and Kansas decisions seem to consider the fact that the children of the complainants were not compelled to join in the exercises as affecting the question in some way. That suggestion seems to us to concede the position of the plaintiffs in error. The exclusion of a pupil from this part of the school exercises in which the rest of the school joins, separates him from his fellows, puts him in a class by himself, deprives him of his equality with the other pupils, subjects him to a religious stigma and places him at a disadvantage in the school, which the law never contemplated. All this is because of his religious belief. If the instruction or exercise is such that certain of the pupils must be excused from it because it is hostile to their or their parents' religious belief, then such instruction or exercise is sectarian and forbidden by the Constitution. While some of these decisions tend to sustain the proposition that the reading of the Bible, prayer, and singing of hymns in accordance with the usual method of conducting devotional exercises 245 Ill. 334, 92 N. E. 251 (1910).

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in Protestant denominations may be required of the pupils of a public school against the protest and religious convictions of the pupils and their parents, we cannot assent to the reasoning on which such decisions are founded and apply it to the provisions of our constitution.13

The dissenting judges called attention to the provisions of the Ordinance of the Northwest Territory of 1787: "It is therein provided that 'religion, morality, and knowledge being necessary to good government and happiness of mankind, schools and the means of education shall forever be encouraged.'" Since the high moral values of the Bible are universal, its reading in the public schools should not, they argued, be banned by the court. The dissenting judges concluded that since the Bible was not necessarily sectarian, the decision in this question should be left to the local school boards and the state constitution should not be interpreted as denying that power to the local boards.

Although the decision in this case seemed to the petitioner to support a judgment in her favor, other Illinois decisions had permitted some state aid to religion. The Illinois Supreme Court had early held that the state constitution was not violated by a school board which allowed the school building to be used for a religious meeting outside of school time.15 The financial aid was indeed slight, for it would be impossible to determine the amount of wear and tear on the schoolhouse caused by this meeting, and the aid was thought to come within the doctrine of de minimis. Attendance at the meeting was entirely voluntary; the state aid here was likened to the exemption of church property from taxation. This same rule was held applicable to the use of a part of a school building by a fraternal organization.'

16

Somewhat closer to the religious education classes in the schools is the rule of the University of Illinois, a state-supported school, which required all students to attend regular chapel exercises unless they were excused. A student who refused to ask to be excused was excluded from school for wilfully absenting himself from the chapel exercises. He was out of school for two years and then petitioned for a writ of mandamus to compel the university to permit him to return. Although a majority of the court refused the writ on the ground that the regulation was reasonable,1 much stress was laid on the remedy. Even assuming that the student had a right to return to school, the court thought that there was an insufficient showing that he wanted to attend and therefore mandamus was not proper. The concurring judges relied on the latter ground.18

The use of property of religious corporations for public purposes has been litigated a number of times in Illinois. In a school district predominantly Catholic, the

13

3 Id. at 351, 92 N. E. at 256-257.

15 Nichols v. School Directors, 93 Ill. 61 (1879).

14 Id. at 355, 92 N. E. at 258.

16 Lagow v. Hill, 238 Ill. 428, 87 N. E. 369 (1909).

17 North v. Board of Trustees of University of Illinois, 137 Ill. 296, 27 N. E. 54 (1891).

18 In McCormick v. Burt, 95 Ill. 263 (1880), the court refused to set aside a rule of a school board requiring the reading of the King James version of the Bible as a part of the morning exercises, because the plaintiff in a suit for damages failed to allege that the board acted wantonly or maliciously.