Zorach Question

Constitutional scholar Marty Lederman says that the problem with release time programs such as in Zorach is that they coerce students to participate in the religious programs. Here is how he explained his position on a religious liberty listserv:

Notably, even the strongest supporters of religious accommodations generally agree that an exemption that is limited to religious believers should be unconstitutional if it has the effect of coercing persons to adopt or feign religion. One prominent example, with reference to one of the few religious exemptions that the Court has upheld, in Zorach v. Clauson: In his GW article, Chip Lupu wrote that in his public school in Albany, when Patty H. "scooped up her blue-and-white paper-covered catechism and headed for religious instruction at St. Theresa's of Avila, a parochial school located a short block away," there was a significant burden on "those of us who did not have scheduled religious instruction at this time, the remaining hour of school was dead and empty--no assignments and no guidance other than an admonition to be silent. . . . [T]he released time program trapped nonparticipating students in an entirely wasted hour of school. This, of course, was no product of the teacher's idiosyncrasies; the empty hour was an explicit feature of the program, which included assurances to participants that they would miss nothing of importance while they were engaged in religious instruction." 60 G.W. L. Rev. at 743.

In his response, Michael McConnell conceded that if there were such a "wasted hour" in Zorach itself, then the released time program in that case would have been invalid: "Zorach is a difficult case because the opinion does not provide sufficient information about the activities in which the nonparticipating students were engaged. In my opinion, a released time program of the sort Professor Lupu experienced as a child, in which the nonparticipating students were inflicted with 'an entirely wasted hour of school,' would be unconstitutional." 60 G.W. L. Rev. at 705 n.81.

I responded to Marty:

But isn't a study hall something constructive? Public schools have study halls all the time, and they count toward the mandatory school attendance requirement. No?

I thought the point that someone...made was that parents are coerced into granting their consent for released time unless the school provides some meaningful activity for those who remain on campus. I doubt if very many parents would choose an off-campus religious program they oppose over a supervised study hall for children who remain on campus.

Now, if children not participating in the release time program were required to clean the school's toilets or wash and wax its floors, we would have some coercion to talk about. But a study hall seems to me both a legitimate and a meaningful alternative to participation in the released time program. Study is good. Children need to do more of it.

And, if I were putting the program together, I would also allow any parent who objected to the study hall to request that his or her child be released into his or her custody during the released time period. This would ensure that no one need remain on campus during the released time period. Spending time with parents is good. Children need to do more of it.

What do some of you think? Please feel free to join this debate by posting a comment.