March 8, 2013
The Lemon test, established in 1971’s Lemon v. Kurtzman, is the current standard used by federal courts to determine whether a government law or practice violates the Establishment Clause.
The final prong of the three-part test requires that the challenged government action “avoids excessive entanglement with religion.”
Although the true definition of “excessive entanglement” is often hotly debated today, there are fairly clear examples to be found in rulings pre-dating Lemon.
One of the most prominent cases with such an example is 1948’s McCollum v. Board of Education, decided 65 years ago today, on March 8, 1948.
McCollum’s example of “excessive” government “entanglement” with religion is what is known as “released time” – time set aside by public schools to allow students to attend religious instruction.
There’s an added element to McCollum’s “released time:” the religious instruction was conducted on public school premises during the school day.
This religious instruction was offered in one of three choices: Catholic, Protestant, or Jewish; the instructors for each of these classes were clergy and lay members from the respective sect.
Vashti McCollum, after petitioning school officials directly to change the policy, filed suit in federal court, challenging the law.
Vashti was the mother of James McCollum, a fourth grader at the time. Vashti and her husband John didn’t allow James to participate in any of the religious instruction offered at the school.
During the time that these classes occurred, James, being the only student in his class who did not participate in the religious instruction, was forced to wait alone in the hallway during the classes. In addition, James faced ostracism from teachers and students because of his lack of participation.
McCollum’s challenge failed within the Illinois state courts system, with the Illinois Supreme Court finding that, because the classes were voluntary, there was no constitutional violation. Further, the state high court held that, while the government cannot favor one religion over another, it can (and should) certainly favor religion over irreligion (the Supreme Court made the opposite conclusion in 1994’s Board of Education of Kiryas Joel Village School District v. Grumet).
The Supreme Court reversed the Illinois court, finding the supposedly voluntary nature of the classes to be irrelevant to whether the classes were constitutional.
Instead, the Court made several points on how the school district’s policies ran afoul of the Establishment Clause.
First, the Court took issue with the fact that “the state’s tax-supported public school buildings [were] used for the dissemination of religious doctrines,” an unequivocal advancement of religion.
More egregious to the Court, however, was the fact that “[p]upils compelled by law to go to school for secular education are released in part from their legal duty upon the condition that they attend the religious classes.”
The Court found this to be “beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith,” and as such was a clear violation of the First Amendment’s Establishment Clause.
The school district attempted to defend its practice to the Supreme Court by arguing that the state’s refusal to “utilize its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals” manifests a government hostility to (or, “war on”) religion in violation of the Free Exercise Clause. The Court rejected this argument outright (although this argument persists today, in one form or another).
Aside from these specific Establishment Clause jurisprudential developments arising from McCollum, the ruling also had a much broader impact on Establishment Clause law: it was the first time that the Establishment Clause was held as enforceable against the individual states.
Nevertheless, McCollum will be remembered more for its holding that public schools cannot utilize religious instruction as part of its curriculum – a holding that remains contentious among some 65 years later.