Appellant
Tessim Zorach
Appellee
Andrew G. Clauson, Jr.
Appellant's Claim
That New York City's program of "released time" for students to attend religious instruction away from school premises violated the First Amendment mandate of church-state separation.
Chief Lawyer for Appellant
Kenneth W. Greenawalt
Chief Lawyer for Appellee
Michael A. Castaldi
Justices for the Court
Harold Burton, Tom C. Clark, William O. Douglas (writing for the Court), Sherman Minton, Stanley Forman Reed, Fred Moore Vinson
Justices Dissenting
Hugo Lafayette Black, Felix Frankfurter, Robert H. Jackson
Place
Washington, D.C.
Date of Decision
28 April 1952
Decision
The Supreme Court upheld the program.
Significance
Although Zorach is at odds with other Supreme Court precedents, it hasevolved into the Lemon test for acceptable state accommodation of religion.
In the 1940s, New York City adopted a program of "released time" that permitted public school students to take time off during the normal school day to attend religious instruction away from the actual school premises. Tessim Zorach, together with other taxpayers and parents in New York, brought suit against Andrew Clauson and other members of the city school board, challenging theprogram. After a series of New York state courts rejected his challenge, Zorach took his case to the U.S. Supreme Court.
Supreme Court Upholds "Released Time" Program
Zorach based his suit on the Establishment Clause of the First Amendment, which holds that: "Congress shall make no law respecting an establishment of religion . . . " Since the days of Thomas Jefferson, this clause of the Constitution has been interpreted to mean that "a wall of separation" exists betweenchurch and state. And since the Court decided Everson v. Board of Education in 1947, government has had to maintain an attitude of strict neutrality towards religion in order to keep that wall up.
The effort with regard to public schools has been especially fraught. In 1948, the Court considered the first of its "released time" cases, Illinois exrel. McCollum v. Board of Education, in which religious instruction provided to public school students by independent teachers on school grounds wasstruck down. Just four years later, in Zorach, however, the Court upheld a similar "released time" program. The only obvious difference between thetwo programs was that in Zorach the religious instruction took placeaway from school property.
It is not easy to square Zorach with McCollum. Indeed, in lateryears, Justice Douglas, the author of the majority opinion in Zorachdisavowed what he had to say there. But Douglas's opinion itself contains indications of why the Court has not only not reversed Zorach, but subsequently expanded upon it:
The difference between the situations in McCollum and Zorach was the manner in which students confirmed participation. In McCollum the students had to opt out, and in the latter students had to make an affirmative effort to participate. The decision to engage in religious activities during school hours, in other words, was theirs and their parents'. This line ofthought eventually led, in Lemon v. Kurtzman (1971), to the Lemon test for acceptable state accommodation of religion. In order for a statute or program not to violate the Establishment Clause, it must meet three requirements: 1) it must have a secular legislative purpose; 2) its primary purpose must neither advance nor inhibit religion; and 3) it must not foster excessive government entanglement with religion.
It is this third prong of the Lemon test that evolved from Zorach. Ifstudents--or better yet, their more independent parents--make the decision toparticipate in religious activities only tangentially connected with the public schools, then the government itself avoids "excessive entanglement." Suchthinking has led to decisions like Board of Education v. Mergens (1990), in which the Court upheld prayer meetings organized and held at a publichigh school during an "activity period" when students were free to attend a wide variety of other, secular events.
Related Cases
Public School Release Time
Public school release time is an arrangement that permits public school children to be dismissed from regularly scheduled classes for the purpose of attending religious instruction. According to the 30 April 1952, New York Times article, "Time Off for Religion," in 1952 there were 550,000 elementaryschool students in New York City eligible to take advantage of release time programs. Of that number, 105,467 actually participated. The article stated that in 1952, there were 2,000,000 students nationwide that took sanctioned time off from school in order to receive religious training.
Sources
Eastland, Terry. Religious Liberty in the Supreme Court. Washington, DC: Ethics and Public Policy Center, 1993.
Tessim Zorach
Appellee
Andrew G. Clauson, Jr.
Appellant's Claim
That New York City's program of "released time" for students to attend religious instruction away from school premises violated the First Amendment mandate of church-state separation.
Chief Lawyer for Appellant
Kenneth W. Greenawalt
Chief Lawyer for Appellee
Michael A. Castaldi
Justices for the Court
Harold Burton, Tom C. Clark, William O. Douglas (writing for the Court), Sherman Minton, Stanley Forman Reed, Fred Moore Vinson
Justices Dissenting
Hugo Lafayette Black, Felix Frankfurter, Robert H. Jackson
Place
Washington, D.C.
Date of Decision
28 April 1952
Decision
The Supreme Court upheld the program.
Significance
Although Zorach is at odds with other Supreme Court precedents, it hasevolved into the Lemon test for acceptable state accommodation of religion.
In the 1940s, New York City adopted a program of "released time" that permitted public school students to take time off during the normal school day to attend religious instruction away from the actual school premises. Tessim Zorach, together with other taxpayers and parents in New York, brought suit against Andrew Clauson and other members of the city school board, challenging theprogram. After a series of New York state courts rejected his challenge, Zorach took his case to the U.S. Supreme Court.
Supreme Court Upholds "Released Time" Program
Zorach based his suit on the Establishment Clause of the First Amendment, which holds that: "Congress shall make no law respecting an establishment of religion . . . " Since the days of Thomas Jefferson, this clause of the Constitution has been interpreted to mean that "a wall of separation" exists betweenchurch and state. And since the Court decided Everson v. Board of Education in 1947, government has had to maintain an attitude of strict neutrality towards religion in order to keep that wall up.
The effort with regard to public schools has been especially fraught. In 1948, the Court considered the first of its "released time" cases, Illinois exrel. McCollum v. Board of Education, in which religious instruction provided to public school students by independent teachers on school grounds wasstruck down. Just four years later, in Zorach, however, the Court upheld a similar "released time" program. The only obvious difference between thetwo programs was that in Zorach the religious instruction took placeaway from school property.
It is not easy to square Zorach with McCollum. Indeed, in lateryears, Justice Douglas, the author of the majority opinion in Zorachdisavowed what he had to say there. But Douglas's opinion itself contains indications of why the Court has not only not reversed Zorach, but subsequently expanded upon it:
We would have to press the concept of separation of Church and state to . . . extremes to condemn the present law on constitutional grounds . . . In each case the teacher requires parental consent in writing. In each case the teacher, in order to make sure the student isnot a truant, goes further and requires a report from the priest, the rabbi,or the minister. The teacher in other words cooperates in a religious programto the extent of making it possible for her students to participate in it. Whether she does it 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.
The difference between the situations in McCollum and Zorach was the manner in which students confirmed participation. In McCollum the students had to opt out, and in the latter students had to make an affirmative effort to participate. The decision to engage in religious activities during school hours, in other words, was theirs and their parents'. This line ofthought eventually led, in Lemon v. Kurtzman (1971), to the Lemon test for acceptable state accommodation of religion. In order for a statute or program not to violate the Establishment Clause, it must meet three requirements: 1) it must have a secular legislative purpose; 2) its primary purpose must neither advance nor inhibit religion; and 3) it must not foster excessive government entanglement with religion.
It is this third prong of the Lemon test that evolved from Zorach. Ifstudents--or better yet, their more independent parents--make the decision toparticipate in religious activities only tangentially connected with the public schools, then the government itself avoids "excessive entanglement." Suchthinking has led to decisions like Board of Education v. Mergens (1990), in which the Court upheld prayer meetings organized and held at a publichigh school during an "activity period" when students were free to attend a wide variety of other, secular events.
Related Cases
- Everson v. Board of Education, 330 U.S. 1 (1947).
- Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948).
- Lemon v. Kurtzman, 403 U.S. 602 (1971).
- Board of Education v. Mergens, (1990).
Public School Release Time
Public school release time is an arrangement that permits public school children to be dismissed from regularly scheduled classes for the purpose of attending religious instruction. According to the 30 April 1952, New York Times article, "Time Off for Religion," in 1952 there were 550,000 elementaryschool students in New York City eligible to take advantage of release time programs. Of that number, 105,467 actually participated. The article stated that in 1952, there were 2,000,000 students nationwide that took sanctioned time off from school in order to receive religious training.
Sources
Eastland, Terry. Religious Liberty in the Supreme Court. Washington, DC: Ethics and Public Policy Center, 1993.
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