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General Information

New York is one of several states that requires school boards to release students to participate in religious instruction. This statute opens the door for Released Time in every school district in the state. Released Time programs should be operating in every school in the state to ensure that students are able to take advantage of their right under state law to participate in religious instruction.

In addition, any Released Time program would also need to ensure compliance with the guidepost for Released Time programs provided by the U.S. Supreme Court in McCollum v. Board of Education, 333 U.S. 203 (1948) and Zorach v. Clauson, 343 U.S. 306 (1952). These guideposts include:
1) The school cannot fund the Released Time program, other than de minimis administrative costs (such as the costs of a school board approving a local Released Time policy).
2) Released Time programs cannot take place on school premises; and
3) Student participation in Released Time programs must be voluntary. There cannot be any coercion, encouragement, or discouragement on the part of any school official.

However, these three points are not exclusive. One should conduct thorough research on the latest state and federal laws and court decisions to determine if there are any updated guidelines for a Released Time program to follow.

Statutes

N.Y. Educ. Law § 3210
New York compulsory attendance law requires that all children, ages 6-15 (inclusive), must attend public school “or elsewhere.”

N.Y. Educ. Law § 3210
“Absence for religious observance and education shall be permitted….” All such Released Time programs are governed by the rules that the Commissioner of Education will establish.

Regulation

New York Commissioner’s Revised Regulations (NYCRR) 109.2(a)
A student will be excused from school during school hours for religious education upon a request in writing signed by the student’s parents

NYCRR 109.2(b)
Such religious instruction must be given off of the public school grounds and be operated under the control of “duly constituted religious bodies:

NYCRR 109.2(c), (d)
Students, in addition, must be registered for the religious courses and a copy of the registration and attendance record must be filed with the local public school authorities.

NYCRR 109.2(e)
A local board of education shall permit students to be released for not more than one hour a week while school is in session at a time set by the local school authorities.

NYCRR 109.2(f)
A board of education may also establish an optional program for high school students in order (grades 9-12) to permit a student, with the written approval of parent, to enroll in a course in religion in a registered non-public high school. Absence to attend such a course may be excused for the number of periods per week that the course is scheduled in the nonpublic school.

CHANCELLOR’S REGULATION A-630; 10/1/79
A program for religious instruction may be initiated by any religious organization in cooperation with the parents concerned. There will be, however, no announcement of any kind in the public school concerning the released time program. Each religious organization will issue a card to a student to be countersigned by the parent and addressed to the principal of the public school, requesting the release of the student from school for the purpose of religious instruction at a specific location.

A student is to be released for the last hour of the instructional day each week to receive religious instruction - this hour is generally 2:00 p.m. The day upon which released time is permitted for all boroughs is Wednesday.

For specific reporting requirements of the public schools concerning Released time programs, see Chancellor’s Regulation A-631 (8/17/81).

Attorney General Opinions

None

Case Law

Lewis v. Graves, 156 N.E. 663 (1927)
In Lewis v. Graves, a White Plains Released Time program was upheld as valid under the N.Y. Constitutional provision prohibiting funding of religious schools and under the general attendance statute. The White Plains plan allowed students to be excused during the last half hour of the day, once each week. Written consent of parents was required; and no public funds were used to implement the program. At the time, no Released Time statutes or regulations had been enacted.

Lewis v. Spaulding, 85 NYS 2d 582 (1948)
In Lewis v. Spaulding, the New York City Released Time program, similar to the current NYC plan, was held to be valid. The NYC plan, in contrast to the Champaign, Illinois plan struck down in McCollum v. Board of Education, was ruled to be constitutional and not in violation of the First Amendment prohibiting the making of any law respecting the establishment of religion. The constitutionality of each Released Time program, however, must be tested by the factual aspects of the particular programs under scrutiny.

Pierce ex rel. Pierce v. Sullivan West Central School District, 379 F.3d 56 (2d Cir 2004)
In Pierce, the 2nd Circuit Court of Appeals held that New York’s Education Law provision allowing “released time” from public schools for religious instruction did not violate Establishment Clause as implemented by school district. The local program did not use public funds or involve on-site religious instruction, the program was purely voluntary, and there was no specific coercion or pressure brought to bear on non-participants by school officials.

In McCreary v. Stone, 739 F.2d 716 (2d Cir. 1984), the Second Circuit Court of Appeals referenced Zorach v. Clauson as standing for the proposition that a “program allowing release of students during school hours for religious instruction” did not violate the Establishment Clause of the First Amendment. Id. at 726. Similarly, in Katcoff v. March, 755 F.2d 223 (2d. Cir. 1985), the Second Circuit cited Zorach as “upholding school released time program for religious instruction outside [the] city’s school system.” Id. at 233. While these cases were dealing with constitutional issues unrelated to released-time programs, the circuit court’s references to the Zorach case implies that this circuit still recognizes Zorach’s upholding of a released-time program as constitutionally valid.

*The rulings of the 2nd Circuit Court of Appeals are binding precedent on Connecticut, New York, and Vermont.

Commissioner’s Decisions

66 St. Dept. 8 (1945)
In one district, 160 students received religious instruction on public school property, sometimes in the same room as non-participating students. The Commissioner wrote that school building should not be used for religious instruction. Students should be excused to receive religious education away from public school grounds.