MATTER OF ZORACH v. Clauson

100 N.E.2d 463, 303 N.Y. 161, 1951 N.Y. LEXIS 699

• Court: New York Court of Appeals
• Decided: July 11, 1951
• Status: Published

Opinions

Froessel, J.

This appeal challenges the constitutionality of the long-standing “ released time ” program in New York City, whereby parents may withdraw their children from the public schools one hour a week to receive religious instruction in the faith of their acceptance.

For many years released time existed in this State without express statutory authority. Then in 1940, the State Legislature, by an almost unanimous vote and with the approval of Governor Lehman (1940 Public Papers of Governor Lehman, p. 328), added (L. 1940, ch. 305) to the Education Law, which governs, among other things, the attendance of minors in schools, the following provision: “ Absence for religious observance and education shall be permitted under rules that the commissioner [of education] shall establish.”

Pursuant to this provision, which is now found in paragraph b of subdivision 1 of section 3210 of the Education Law, the State Commissioner of Education has promulgated the following rules (Regulations of Comr. of Educ., art. 17, § 154; 1 N. Y. Official Compilation of Codes, Rules and Regulations, p. 683):

“ 1. Absence of a pupil from school during school hours for religious observance and education to be had outside the school building and grounds will be excused upon the request in writing signed by the parent or guardian of the pupil.

“ 2. The courses in religious observance and education must be maintained and operated by or under the control of duly constituted religious bodies.

“ 3. Pupils must be registered for the courses and a copy of the registration filed with the local public school authorities.

“ 4. Reports of attendance of pupils upon such courses shall be filed with the principal or teacher at the end of each week.

“ 5. Such absence shall be for not more than one hour each week at the close of a session at a time to be fixed by the local school authorities.

££ 6. In the event that more than one school for religious observance and education is maintained in any district, the hour for absence for each particular public school in such district shall be the same for all such religious schools.”

Additional rules have been established by the New York City Board of Education:

“1.A program for religious instruction may be initiated by any religious organization, in cooperation with the parents of pupils concerned. There will be no announcement of any kind in the public schools relative to the program.

‘‘ 2. When a religious organization is prepared to initiate a program for religious instruction, the said organization will notify parents to enroll their children with the religious organization, and will issue to each enrolled pupil a card countersigned by the parent and addressed to the principal of the public school, requesting the release of the pupil from school for the purpose of religious instruction at a specific location. The said cards will be filed in the office of the public school as a record of pupils entitled to be excused, and will not be available or used for any other purpose.

‘ ‘ 3.- Religious organizations, in cooperation with parents, will assume full responsibility for attendance at the religious center and will file with the school principal, weekly, a card attendance record and in cases of absence from religious instruction, a statement of the reason therefor.

‘£ 4. Upon the presentation of a proper request as above prescribed, pupils of any grade will he d':'missed from school for the last hour of the day’s session on one day of each week to be designated by the Superintendent of Schools: A different day may be designated for each borough.

££ 5. Pupils released for religious instruction will be dismissed from school in the usual way and the school authorities have no responsibility beyond that assumed in regular dismissals.

“ 6. There shall be no comment by any principal or teacher on the attendance or non-attendance of any pupil upon religious instruction.”

Appellants, parents of children attending public schools in New York City who do not avail themselves of this program and are in nowise obliged to do so, challenge by this article 78 proceeding the constitutionality of the foregoing statute and rules in toto, upon the ground that they violate the prohibition against laws respecting an establishment of religion contained in the First Amendment of the Federal Constitution, as applied to the States by the Fourteenth Amendment, and prohibit the free exercise of religion in violation of the First and Fourteenth Amendments of the Federal Constitution and section 3 of article I of our State Constitution. The courts below have denied them relief and dismissed the proceeding.

In support of their contention, appellants rely primarily on Illinois ex rel. McCollum v. Board of Educ. (333 U. S. 203). There, a local board of education in Champaign County, Illinois, participated in a released time program which differed radically from the one before us. There was no underlying State enabling act. Religious training took place in the school buildings and on school property. The place for instruction was designated by the school authorities. Pupils taking religious instruction were segregated by school authorities according to faiths. School officials supervised and approved the religious teachers. Pupils were solicited in school buildings for religious instruction. Registration cards were distributed by the school, and in one case printed by the school. None of these factors is present in the case before us, and, accordingly, the Supreme Court’s holding that the Champaign released time program was constitutionally invalid is not controlling here.

In the New York City program there is neither supervision nor approval of religious teachers and no solicitation of pupils or distribution of cards. The religious instruction must be outside the school building and grounds. There must be no announcement of any kind in the public schools relative to the program and no comment by any principal or teacher on the attendance or nonattendance of any pupil upon religious instructian. All that the school does besides excusing the pupil is to keep a record — which is not available for any other purpose — in order to see that the excuses are not taken advantage of and the school deceived, which is, of course, the same procedure the school would take in respect of absence for any other reason.

It is manifest that the McCollum case (supra) is not a holding that all released time programs are per se unconstitutional. The Supreme Court’s decision is limited to the fact situation before it. Thus, Mr. Justice Black, writing for the court, reviewed the evidence so far as undisputed and stated (p. 209) that the “ foregoing facts ” (emphasis supplied) “ show the use of tax-supported property for religious instruction and the close cooperation between the school authorities and the religious council in promoting religious education.”

In the instant case, there is no “ use ” of tax-supported ‘ ‘ property or credit or any public money ” “ directly or indirectly ” “in aid or maintenance ” of religious instruction (People ex rel. Lewis v. Graves, 245 N. Y. 195, 198, motion for reargument denied 245 N. Y. 620, affg. 219 App. Div. 233, affg. 127 Misc. 135), and there is no such co-operation as in the McCollum case (supra) between the school authorities and the religious committee in promoting religious education.

Other Justices who wrote in the McCollum case (supra) were even more explicit in placing boundaries on the determination. Mr. Justice Frankfurter, in a concurring opinion in which three other Justices joined, stated:

“ Of course, ‘ released time ’ as a generalized conception, undefined by differentiating particularities, is not an issue for Constitutional adjudication.” (P. 225.)

“ The substantial differences among arrangements lumped together as ‘ released time ’ emphasize the importance of detailed analysis of the facts to which the Constitutional test of Separation is to be applied. How does ‘ released time ’ operate in Champaign? ” (P. 226.)

“ We do not consider, as indeed we could not, school programs not before us which, though colloquially characterized as 1 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. ” (P. 231.)

Mr. Justice Jackson, in addition to agreeing with the limitations expressed by Mr. Justice Frankfurter, added reservations of his own, and stated: “we should place some bounds on the demands for interference with local schools that we are empowered or willing to entertain ” (p. 232), and that “it is important that we circumscribe our decision with some care.” (P. 234.)

Mr. Justice Reed, who dissented from the court’s holding, pointed out (pp. 239-240) that expressions in the opinions of his colleagues ‘ ‘ seem to leave open for further litigation variations from the Champaign plan. ’ ’ Thus, in addition to the reference in the court’s opinion to the “ foregoing facts ” of the Champaign plan as showing its unconstitutionality, we have five other Justices expressly agreeing that released time as such is not unconstitutional.

Binding precedent must therefore be found in our own decision of nearly twenty-five years ago in People ex rel. Lewis v. Graves (supra), which involved a released time program in the city of White Plains. Such program, except for the absence of a State enabling act, was substantially the same as the one now in issue. Judge Pound, writing for a unanimous court, its other distinguished members having been Chief Judge Cardozo, and Judges Crane, Andrews, Lehman, Kellogg and O’Brien, there said (p. 198, 199):

1 ‘ A child otherwise regular in attendance may be excused for a portion of the entire time during which the schools are in session, to the extent at least of half an hour in each week, to take outside instruction in music or dancing without violating the provisions of the Compulsory Education Law, either in letter or spirit. Otherwise the word 1 regularly ’ as used in the statute would be superfluous. Practical administration of the public schools calls for some elasticity in this regard and vests some discretion in the school authorities. Neither the Constitution nor the law discriminates against religion. Denominational religion is merely put in its proper place outside of public aid or support. * * *

“ The separation of the public school system from religious denominational instruction is thus complete. Jealous sectaries may view with alarm the introduction in the schools of religious teaching which to the unobservant eye is but faintly tinted with denominationalism. Eternal vigilance is the price of constitutional rights. But it is impossible to say, as matter of law, that the slightest infringement of constitutional right or abuse of statutory requirement has been shown in this case.”

To like effect are Gordon v. Board of Educ. of City of Los Angeles (78 Cal. App. 2d 464, review denied 78 Cal. App. 2d 481) and Matter of Lewis v. Spaulding (193 Misc. 66, appeal withdrawn 299 N. Y. 564).

Two years before our decision in the first Lewis case, it had been “ assumed ” by the Supreme Court that freedom of speech and of the press, likewise guaranteed by the First Amendment, were protected by the due process clause of the Fourteenth Amendment (Gitlow v. New York, 268 U. S. 652, 666), and, while the appellant in the Lewis case laid greater stress on section 4 of article IX (now art. XI, § 4) of the New York Constitution, he expressly urged in his petition the violation “ of the constitutional guarantees of the New York State and the United States Constitutions respecting religious liberty and the separation of church and state ”. Nevertheless we held that the released time program did not breach the so-called “ wall of separation ” between church and state.

No metaphorical “ wall ” that mere words can build ever precisely and mathematically delineates a constitutional right. The Supreme Court has recognized, in a religious freedom case, that to ‘ ‘ make accommodation between these freedoms ’ ’ guaranteed by the First Amendment and “ an exercise of state authority ” is always “ delicate ” (Prince v. Massachusetts, 321 U. S. 158, 165). Such freedoms are not absolute (Prince v. Massachusetts, supra, p. 166; Dennis v. United States, 341 U. S. 494; Breard v. Alexandria, 341 U. S. 622; Schenck v. United States, 249 U. S. 47). Numerous situations involving some incidental benefit to religion have been found constitutionally unexceptionable (see, e.g., Everson v. Board of Educ., 330 U. S. 1; Cochran v. Louisiana State Bd. of Educ., 281 U. S. 370; Bradfield v. Roberts, 175 U. S. 291). Tax exemption of church properties (Tax Law, § 4, subd. 6) is but another of many illustrations, and the practice is generally followed. Very recently, in upholding the Sunday law, we have recognized that separation of church and State does not mean that every State action remotely connected with religion must be outlawed (People v. Friedman, 302 N. Y. 75, appeal dismissed for want of a substantial Federal question, 341 U. S. 907).

It is thus clear beyond cavil that the Constitution does not demand that every friendly gesture between church and State shall be discountenanced. The so-called “ wall of separation ” may be built so high and so broad as to impair both State and church, as we have come to know them. Indeed, we should convert this “ wall ”, which in our “ religious nation ” (Church of Holy Trinity v. United States, 143 U. S. 457, 470) is designed as a reasonable line of demarcation between friends, into an “ iron curtain ” as between foes, were we to strike down this sincere and most scrupulous effort of our State legislators, the elected representatives of the People, to find an accommodation between constitutional prohibitions and the right of parental control over children. In so doing we should manifest “ a governmental hostility to religion ” which would be “ at war with our national tradition ” (Illinois ex rel. McCollum v. Board of Educ., supra, p. 211) and would disregard the basic tenet of constitutional law that “ the public interests imperatively demand — that legislative enactments should be recognized and enforced by the courts as embodying the will of the people, unless they are plainly and palpably, beyond all question, in violation of the fundamental law of the Constitution ” (Atkin v. Kansas, 191 U. S. 207, 223).

While extreme care must, of course, be exercised to protect the constitutional rights of these appellants, it must also be remembered that the First Amendment not only forbids laws 1 ‘ respecting an establishment of religion ” but also laws “ prohibiting the free exercise thereof ”. We must not destroy one in an effort to preserve the other. We cannot, therefore, be unmindful of the constitutional rights of those many parents in our State •(we are told that some 200,000 children are enrolled in the released time programs in this jurisdiction, and ten times as many throughout the nation) who participate in and subscribe to such programs. The right of parents to direct the rearing and education of their children, free from any general power of the State to standardize children by forcing them to accept instruction from public school teachers only, is an unquestioned one (Pierce v. Society of Sisters, 268 U. S. 510), and, more recently, the nation’s highest judicial tribunal has declared: “ It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder ” (Prince v. Massachusetts, supra, p. 166).

Because the public school must be kept separate and apart from the church, pupils may not constitutionally receive religious instruction therein. All that New York parents ask then is that their children may be excused one hour a week for that purpose. The New York City Board of Education provides more days for secular instruction than required by law (Education Law, § 3204, subd. 4). The Education Law does not fix the number of hours that constitute a school day. Excuses from attendance are permitted for many good reasons; among others, children are excused from school on holy days set apart by their respective faiths, thus producing a most obvious form of divisiveness, not paralleled in the released time program. Indeed we are all agreed that refusal to excuse children for that reason would be an unconstitutional abridgement of freedom of religion. If it be constitutional to excuse children of a particular faith for entire days for such a religious purpose, it seems clear, by a parity of reasoning, that it is also constitutional, under the circumstances here presented, to excuse children of whatever faith one hour a week for another and similar religious purpose. The statute (Education Law, § 3210, subd. 1, par. b) authorizes absence for both “ religious observance and education ”.

Moreover, parents have the right to educate their children elsewhere than in the public schools, provided the State’s minimum requirements are met (Education Law, § 3204; Pierce v. Society of Sisters, supra), and thus, if they wish, choose a religious or parochial school where religious instruction is freely given. That being so, it follows that parents, who desire to have their children educated in the public schools but to withdraw them therefrom for the limited period of only one hour a week in order to receive religious instruction, may ask the public school for such permission, and the school may constitutionally accede to this parental request. There is nothing in the Constitution commanding that religious instruction may be given on the Sabbath alone, and on no other day.

Appellants assert that in any event triable issues of fact are presented. A basic difficulty with this contention is that appellants now declare that they are prepared to show on a trial matters that have not even been properly pleaded. A great many of their allegations are conclusory in character (Kalmanash v. Smith, 291 N. Y. 142, 154), and, as appellants concede, have been lifted bodily from portions of the McCollum opinions, without the statement of adequate facts to support them (Civ. Prac. Act, § 1288). As the Appellate Division said, “ if the truth of all of the well-pleaded allegations of the petition is conceded, petitioners have failed to allege facts sufficient to establish any invasion of their constitutional rights ” (emphasis supplied; 278 App. Div. 573, 575).

Moreover, many of the conclusory allegations suggest merely a disobedience of the rules and regulations. Such disobedience, while it might warrant the initiation of disciplinary proceedings against any of the offending teachers or principals, would in nowise warrant the relief prayed for, namely, a total discontinuance of the released time program and a rescission of all regulations established by the authorities. It is, of course, possible that a statute and regulations constitutional on their face may be administered in an unconstitutional way (Snowden v. Hughes, 321 U. S. 1; Yick Wo v. Hopkins, 118 U. S. 356), but in order to invoke this principle it must appear that there is 11 an element of intentional or purposeful discrimination ’ ’ by the enforcement authorities (Snowden v. Hughes, supra, p. 8). Here there is no allegation in the petition to that effect, and, indeed, even in appellants’ brief and in the briefs amici supporting their position, “ The offer of proof was not an offer to show a pattern of discrimination consciously practiced ” (People v. Friedman, supra, p. 81). Under the circumstances, whether the released time program is constitutional is solely a question of law, and the case has been so treated by Special Term as well as by the Appellate Division majority and dissenters.

The order of the Appellate Division should be affirmed, with costs.