From Religious Expression in Public Schools
by Oliver Thomas, First Ammendment Center, Freedom Forum

Many states have laws authorizing students to be released periodically for off-campus religious instruction during the school day. Such off-campus released time programs have been ruled constitutional by the United States Supreme Court. In an opinion by staunch separationist William O. Douglas, the court stated: "When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to accommodate sectarian needs, it follows the best of our traditions."

Earlier, the justices had been asked to rule on a released-time program that provided for on-campus religious instruction. In this program, students were released from classes once a week to receive religious training in the public school. There were separate classes for Protestants, Catholics and Jews, and all religious instructors were under the supervision of the superintendent of schools. Students who did not wish to receive religious instruction were required to leave their classrooms and go elsewhere in the school for additional nonreligious studies. The Supreme Court held that the use of public schools and compulsory-attendance laws for religious training violated the First Amendment's ban against laws respecting an establishment of religion.(8) In the words of Justice Hugo Black: "Here not only are the State's tax-supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the state's compulsory public school machinery. This is not separation of Church and State."

Returning to the off-campus, released-time programs upheld by the Supreme Court, schools are under no obligation to create such programs. The Court's decision simply permits them. States are free to allow released-time programs when they are requested by students and their parents, but most states leave this decision up to individual school districts. If a released-time program is created, schools may not discriminate among religious groups. That is to say, the program must be administered in a fair and even-handed manner so that all religious groups are treated the same.

It should be noted that schools are not permitted to endorse or promote religious instruction, even when it is held off campus. Solicitation of students to attend religious classes may not be done at the expense of the school,(9) and only those students whose parents have signed permission slips should be allowed to attend. Students who do not wish to attend may not be penalized. Of course, schools may not rent their facilities to religious groups for religious instruction during the school day.(10)

The question has arisen whether schools may give academic credit for released-time courses. Although the answer remains unclear, it is likely such a program would be unconstitutional, especially if credit is not given for other non-school courses. There is very little to distinguish many of these religious courses from a religious education class, a nonacademic exercise for which schools could almost certainly not give credit.(11)