August 2007
In the landmark case of McCollum v. Board of Educ., 333 U.S. 38 (1948), the U.S. Supreme Court held that religious instruction in public schools is unconstitutional. However, students may obtain what is called “released time” to attend private religious classes off campus so long as the public school is not unduly entangled in the religious institution involved.
In determining whether a school is unconstitutionally entangled in a religious instruction program, the Court must apply a three-part balancing test first developed in Lemon v. Kurtzman, 403 U.S. 602 (1971) and refined by Lynch v. Donnelly, 465 U.S. 668 (1984). Under the Lemon/Donnelly test, any government or public school policy must: (1) have a secular purpose; (2) not endorse the practice of any particular religion; and (3) the policy must not create excessive government entanglement with religion. If any of the three conditions are violated, the government policy will be found unconstitutional.
It is important to note that although public schools may not engage in religious instruction, it is permissible to teach about religion from a literary, cultural, or historic point of view. Abington School Dist. V. Schempp, 374 U.S. 203, 306 (1963). Also, in addition to released time requirements, public schools must abide by the federal Equal Access Act, which requires that schools provide student-led religious groups the same access to school resources as any other non-curricular student club (for more information on the Equal Access Act, see the ACLU of Utah resource “Students’ Rights to Form Gay/Straight Alliances”).
In 1981, the Tenth Circuit Court of Appeals dealt directly with the constitutionality of one released time religious program common in Utah high schools: LDS seminary. In Lanner v. Wimmer, the appeals court found that released time religious programs are not per se unconstitutional. However, they did find that by their very nature, released time programs “can present[ ] the potential for unconstitutional entanglement of public schools with religious institutions.” Thus, in implementing released time programs, public schools are obligated to always choose the “least entangling administrative alternatives.” Lanner v. Wimmer, 662 F.2 1349, 1358 (10th Cir. 1981)
In Utah, the criteria for enrollment in released time religious instruction courses are defined in the Utah Administrative Code, Rule R277-610. The code stipulates that LDS seminaries and other institutions offering religious instruction, are considered private schools and are separate in all respects from public schools. To secure released time for seminary classes, students must provide the school with written permission from their parents and class times for religious courses must not conflict with required school classes. Most Utah high schools have similar released time programs for student employment, vocational classes, and advanced curriculum courses. However, religious released time programs differ in several major ways:
Registration for seminary courses is separate from the regular school registration. Seminary credits do not count toward graduation requirements and seminary grades may not be included in official school records or transcripts.
Seminary classes may not be held in any public school facilities and public school teachers may not teach seminary courses. Seminary teachers are not considered to be members of school faculty, nor are they allowed to participate in any school functions.
No public funds or public school equipment may be used for religious instruction or promotion of seminary events; this includes the use of telephones, intercoms, copying machines, school newspapers and yearbooks.
Attending seminary is voluntary; public schools may not encourage students to attend seminary classes and students who don’t wish to enroll in seminary cannot be disciplined or sanctioned for not participating.
Finally, school districts must provide released time for students wishing to participate in religious instruction other than seminary.
Any violation of these policies is unconstitutional and discriminatory and should be brought to the attention of the state office of education, the local school board, and the ACLU of Utah.