PARTNER PERSPECTIVE

Released Time Programs Are Coercive and Undermine Secular Public Education

Geoffrey Blackwell
Litigation Counsel, American Atheists

Released time programs are growing more prevalent in recent years and more disruptive to students who don’t participate. These programs have existed since at least 1950, when Zorach v. Clauson began winding its way up through the New York court system on its way to the U.S. Supreme Court. That case sanctioned the practice of a public school district setting aside a designated time for students with parental permission to receive religious education off-campus during the school day. The U.S. Supreme Court determined the program was permissible (though perhaps “unwise and improvident from an educational or a community viewpoint”), stating:

When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups.

Unfortunately, in the years since Zorach, these programs morphed from an accommodation for the needs of religious students into a government-sanctioned means for local churches to pressure young students into participating in religious activities, creating a deeply coercive environment within the public school.

Under pressure from groups like Lifewise Academy, which push for released time programming, many school districts that allow such programs have seen the number of participating students grow substantially, leaving only a few students in the classroom. For these nonparticipating students, the school day grinds to a halt. School districts are understandably hesitant to provide classes for those who remain on campus, as the released time students would miss the opportunity to participate. Instead, the students who remain at school have study hall or are simply sent to the school library to fend for themselves. This disruption of the school day also creates problems for teachers and school staff, who must schedule around the program and deal with parental permissions and the logistics of students leaving and returning to campus.

Even more troubling, Lifewise Academy and similar groups that provide these programs go out of their way to impose the soft coercion of the schoolyard on students who do not attend. They provide participating students with candy and treats as well as shirts, buttons, or other paraphernalia to wear on days they leave school to receive religious instruction. These not only advertise the program but immediately create an in-group among the students wearing them on released time days and otherize those students who are not. Further, participating students are encouraged to pressure nonparticipating students to attend. Promotional material from these groups even goes so far as to celebrate reaching “unchurched” (meaning anyone who doesn’t attend their evangelical churches) students.

But, the argument goes, it is not the government engaging in these coercive tactics. Rather, private religious entities and the participating students are acting to pressure those not already enrolled in the program to sign up. Therefore,according to a string of Supreme Court cases that followed Zorach v. Clauson, the First Amendment has little to say about it.

The coercive and preferential nature of released time programs is becoming more difficult to avoid, however. In the 2012 case Moss v. Spartanburg, the Fourth Circuit Court of Appeals (encompassing Maryland, North Carolina, South Carolina, Virginia, and West Virginia) upheld a South Carolina law that provided a mechanism for high school students attending released time programs to receive up to two class credits for their participation. The decision likened the program to providing transfer credits to students entering the public school system from a private religious school. But a student enrolled in a religious private school does not put the education of public school students on hold the way released time programs so often do. The Moss decision did not bother to discuss what activities, if any, were available to nonparticipating students while their Christian peers were earning course credit for religious instruction over which the school had little to no oversight. If they were left with a study hour, free period, or other activity for which they could not earn course credit, the program hindered them in meeting their graduation requirements.

Currently, 28 states allow school districts to offer released time programs, and two of those (Oklahoma and Tennessee) make it mandatory for school districts. Seven states currently allow school credit for released time classes. Given that groups like Lifewise Academy are pushing states to adopt mandatory released time laws that provide school credit, this is an issue of growing significance that will certainly be tested in the courts.