Released Time Religious Instruction and the Law: Questions and Answers
by: Attorney Timothy W. Denney
2010 edition
About The Author:
Attorney Timothy W. Denney is an attorney and principal in the law firm of Rickard, Denney, Garno & Associates, 110 N. Saginaw Street, Suite 1, Lapeer, Michigan 48446, (810) 664-0750, e-mail at [email protected]. He is a 1986 graduate of the University of Michigan Law School and a Phi Beta Kappa graduate of the University of Michigan. Mr. Denney has been admitted to practice in all state and federal courts in Michigan. He has been representing municipal entities for over 14 years. His practice also includes a focus on civil litigation, real estate transactions, estate planning, and business planning. His practice also includes an emphasis on First Amendment matters involving religion. He is the author of a February 1992 Michigan Bar Journal article entitled “Student Religious Meetings in the Public Schools: The Rules Have Changed”. For over 12 years, he has been teaching a Sunday School class at his local church, First Baptist Church of Lapeer, Michigan.
Notice:
This document is designed to provide general educational background for the reader and is particularly tailored to assist public school administrators. It is not intended as legal advice.
Copying:
Readers are free to copy this document and distribute it to others without the prior consent of the author, but only for non-commercial use and with appropriate attribution.
TABLE OF CONTENTS
I. What are released time classes?
II. Are released time instruction classes legal?
III. Is it optional or mandatory for public schools to release students for released time religious instruction?
IV. May released time religious instruction classes be advertised in public school?
A. May a public school allow advertising for a released time program?
B. If a public school allows distribution of advertising for non-religious community groups, can that school refuse to allow distribution of materials from religious community groups?
V. Do students released for released time classes still count for state attendance purposes?
VI. Does the State of Michigan have other regulations for released time classes?
THE LEGALITY OF RELEASED TIME CLASSES
I. WHAT ARE RELEASED TIME CLASSES?
Released time classes refer to classes held by churches or other religious organizations like RBM Ministries for public school students where, with the permission of the children’s parents or guardians, students are released from the public school during the school day to an off-site location where they are provided religious instruction. “Released time classes give all parents the right to choose to have their school age children released during or from school time with their written permission for off-site attendance to the religions education classes, or to choose not to have them released to any such classes.” RBM Ministries has chosen not to conduct its classes before or after school because such programs do not allow equal access to all children due to transportation problems and conflicts with numerous other extra-curricular activities.
II. ARE RELEASED TIME INSTRUCTION CLASSES LEGAL?
Yes. Michigan law expressly authorizes the release of a public school student for involvement in released time religious instruction.[1] Michigan law permits participation in a released time program for up to two (2) class hours per week. Written permission of a parent or guardian is required.[2]
Furthermore, the United States Supreme Court upheld the constitutionally of released time classes over fifty years ago. [3] In approving of the released time program, the Supreme Court stated as follows:
“We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. 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 indifferent to religious groups.”
Moreover, the Supreme Court’s 1952 approval of released time classes is still being relied upon as valid. As recently as August of 2004, a high level federal court approved the same general framework for released time classes that was approved by the Supreme Court over fifty (50) years earlier.[4]
Allowing attendance at released time classes recognizes and reinforces the constitutional right of parents to direct the religious upbringing of their children—a right recognized by both the federal and Michigan courts.[5] In addition, a high level Federal Court commented as follows in approving of a religious released time program: “public school cooperation with the religious authorities in... the instant case is a largely passive and administratively wise response to a plenitude of parental assertions of the right to direct the upbringing and education of children under their control.” [6]
III. IS IT OPTIONAL OR MANDATORY FOR PUBLIC SCHOOLS TO RELEASE STUDENTS FOR RELEASED TIME RELIGIOUS INSTRUCTION?
If a student’s parent or guardian provides a written permission slip, it is mandatory, not optional, for public schools to release the students for released time religious instruction. Michigan regulations provide that: “The board of education or its duly authorized representative, upon written request of the parent, guardian or person having control or charge of any child or children, shall release from attendance at the public school any child or children to attend religious instruction classes not to exceed 2 hours (120 minutes) per week.” [7]
IV. MAY RELEASED TIME RELIGIOUS INSTRUCTION CLASSES BE ADVERTISED IN PUBLIC SCHOOL?
A. May a public school allow advertising for a released time program?
Yes. As recently as August of 2004, the Sixth Circuit U.S. Court of Appeals, whose decisions are binding on schools in Michigan, ruled that it does not violate the constitution for a public school to distribute materials from religious organizations to students on the same basis as other secular community groups.[8]) The court even stated that if a school “were to refuse to distribute flyers advertising religious activities while continuing to distribute flyers advertising other kinds of activities, students might conclude that the school disapproves of religion.”
B. If a public school allows distribution of advertising for non-religious community groups, can the school refuse to allow distribution of materials from religious community groups?
The answer is “No.” Numerous federal courts have clearly stated that if a public school hands out advertising fliers for private secular community groups, that school may not lawfully refuse to hand out fliers for religious organizations.[9]
It should also be noted that there is a State of Michigan regulation which states as follows:
“No solicitation for attendance at religious instruction classes shall be permitted on public school premises. The staff of the public school system shall neither encourage nor discourage participation in any religious instruction program”. [10]
However, because the regulation singles out religious materials for exclusion, it violates the federal constitution and is therefore unenforceable. Because federal constitutional requirements supersede state regulations, schools would be required to follow the dictates of the federal constitution rather than a conflicting state regulation. [11] The state regulation in question was adopted in 1964 and does not take into account recent case law which makes it unconstitutional and unenforceable. [12]
Given well publicized U.S. Supreme Court decisions in the 1960’s, school administrators are understandably reluctant to allow distribution of religious materials in public schools. However, in recent cases the U.S. Supreme Court has authorized far more advertising in public schools about religious events than most people realize. For example in 1990, the U.S. Supreme Court ruled that if a public high school allowed one non-religious student group to meet on school grounds, it was also required to allow a student religious group to meet as well and to enjoy the same advertising rights as non-religious student groups-including the right to advertise on school bulletin boards and on the school’s public address system.[13] As noted above, the Supreme Court’s decision in 1990 had been followed by numerous decisions allowing distribution of religious materials in public schools and prohibiting discriminatory exclusion of religious materials.[14]
V. DO STUDENTS RELEASED FOR RELEASED TIME CLASSES STILL COUNT FOR STATE ATTENDANCE PURPOSES?
Yes. Michigan Department of Education regulations provide for the public school release of students for released time instructions does not affect the availability of the school to count the released students for state aid purposes. Mich. Administrative Code 340.2(7)
VI. DOES THE STATE OF MICHIGAN HAVE OTHER REGULATIONS FOR RELEASED TIME CLASSES?
Yes. The Michigan Department of Education has adopted a number of regulations that specifically include the following rules:
1. The board of education or its duly authorized representative, upon written request of the parent, guardian or person having control or charge of any child or children, shall release from attendance at the public school any child or children to attend religious instruction classes not to exceed 2 hours (120 minutes) per week.
2. Each written request of the parent, guardian or person having control or charge of any child or children shall be made annually and shall specify the place at which religious instruction shall be given and the total amount of time per week during which release of the child or children from attendance at the public school is requested.
3. Persons or groups intending to hold or conduct religious instruction classes shall notify public school officials of their intent sufficiently in advance of the beginning of such class or classes so that public school officials can comply with the request for release of children from the public school for such purposes.
4. A record of attendance at religious instruction classes shall not be maintained by public school officials. Those persons or groups offering or conducting religious instruction classes shall keep records of attendance. The responsibility for attendance at religious instruction classes belongs to the parent, guardian or person having control or charge of any child or children.
Michigan Admin. Code R 340.71 to 340.74
(Note: A fifth regulation concerning solicitation for released time classes is addressed in Section IV above. As noted above in Section IV, this fifth regulation has been rendered unenforceable by numerous subsequent federal court decisions).
________________________________________
Footnotes
_____________________________________
[1] See MCLA 380.1561 (3)(d); see also Michigan Admin. Code R 340.71.
[2] Mich. Admin Code R 340.71
[3] See Zorach v Clauson, 343 US 306, 72 S. Ct. 679 (1952).
[4] See Pierce v Sullivan West Central School District, 379 F.3d 56, 61 (2d Cir, 2004).
[5] People v Dejonge, 442 Mich 266, 279, 289-90 (1993); Pierce v Society of Sisters, 268 US 510, 535 (1925); Wisconsin v Yoder, 406 U S 205, 214 (1972); see also Mich Compiled Laws 380.10 (“It is the natural, fundamental right of parents and legal guardians to determine and direct the care, teaching and education of their children.”)
[6] Michigan Admin Code R 340.71 (emphasis added).
[7] See Rusk v Crestview Local School District, 379 F.3d 418 (6th Cir., 2004); see also Daugherty v Vanguard Charter School Academy, 116 F. Supp 2d 897 (W.D. Mich, 2000).
[8] Rusk, 379 F.3d 418 (6th Cir, 2004).
[9] Hills v Scottsdale Unified School District, 329 F3d 1044 (9th Cir, 2003) cert den 124 S. Ct. 1146 (2004); Child Evangelism Fellowship of Maryland v. Montgomery County Public Schools, 373 F3d 589 (4th Cir, 2004).
Child Evangelism Fellowship of New Jersey, Inc. v Strafford Township School District, 386 F.3d 514 (3rd Cir, 2004).
[10] Michigan Admin. Code R 340.71.
[11] Cantwell v State of Connecticut, 310 US 296 (1940) (state law restricting dissemination of religious materials which was contrary to US Constitution was invalid).
[12] Hills v Scottsdale Unified School District, 329 F3d 1044 (9th Cir, 2003) cert den 124 S. Ct. 1146 (2004); Child Evangelism Fellowship of Maryland v. Montgomery County Public Schools, 373 F3d 589 (4th Cir, 2004).
Child Evangelism Fellowship of New Jersey, Inc. v Strafford Township School District, 386 F.3d 514 (3rd Cir, 2004).
[13] Bd. of Education v Mergens, 496 US 226 (1990)
[14] Hedges v Wauconda Community Unit School District, 9 F 3d 1295 (7th Cir, 1993); (total ban on student religious literature distribution at junior high school found unconstitutional); Westfield High School LIFE Club v City of Westfield, 249 F Supp 2d 98 (D. Mass, 2003) (ruling ban on student religious literature distribution outside of class was unlawful); Johnston-Loehner v O’Brien, 859 F Supp 575 (MD Fla, 1994); Nelson v Moline School Dist, 725 F Supp 965 (CD Illin, 1989); Clark v Dallas Independent School Dist, 806 F Supp (ND Tex, 1992); Slotterback v Interboro School Dist, 766 F Supp 280 (ED Pa, 1991) (upholding right of students to distribute religious tracts and striking down school policy banning materials that proselytized a particular belief).
Released Time Religious Instruction and the Law: Questions and Answers
printed by RBM Ministries Inc. Kalamazoo, MI 49009.
Phone: 269.342.9879
Email: [email protected]
2010 edition
About The Author:
Attorney Timothy W. Denney is an attorney and principal in the law firm of Rickard, Denney, Garno & Associates, 110 N. Saginaw Street, Suite 1, Lapeer, Michigan 48446, (810) 664-0750, e-mail at [email protected]. He is a 1986 graduate of the University of Michigan Law School and a Phi Beta Kappa graduate of the University of Michigan. Mr. Denney has been admitted to practice in all state and federal courts in Michigan. He has been representing municipal entities for over 14 years. His practice also includes a focus on civil litigation, real estate transactions, estate planning, and business planning. His practice also includes an emphasis on First Amendment matters involving religion. He is the author of a February 1992 Michigan Bar Journal article entitled “Student Religious Meetings in the Public Schools: The Rules Have Changed”. For over 12 years, he has been teaching a Sunday School class at his local church, First Baptist Church of Lapeer, Michigan.
Notice:
This document is designed to provide general educational background for the reader and is particularly tailored to assist public school administrators. It is not intended as legal advice.
Copying:
Readers are free to copy this document and distribute it to others without the prior consent of the author, but only for non-commercial use and with appropriate attribution.
TABLE OF CONTENTS
I. What are released time classes?
II. Are released time instruction classes legal?
III. Is it optional or mandatory for public schools to release students for released time religious instruction?
IV. May released time religious instruction classes be advertised in public school?
A. May a public school allow advertising for a released time program?
B. If a public school allows distribution of advertising for non-religious community groups, can that school refuse to allow distribution of materials from religious community groups?
V. Do students released for released time classes still count for state attendance purposes?
VI. Does the State of Michigan have other regulations for released time classes?
THE LEGALITY OF RELEASED TIME CLASSES
I. WHAT ARE RELEASED TIME CLASSES?
Released time classes refer to classes held by churches or other religious organizations like RBM Ministries for public school students where, with the permission of the children’s parents or guardians, students are released from the public school during the school day to an off-site location where they are provided religious instruction. “Released time classes give all parents the right to choose to have their school age children released during or from school time with their written permission for off-site attendance to the religions education classes, or to choose not to have them released to any such classes.” RBM Ministries has chosen not to conduct its classes before or after school because such programs do not allow equal access to all children due to transportation problems and conflicts with numerous other extra-curricular activities.
II. ARE RELEASED TIME INSTRUCTION CLASSES LEGAL?
Yes. Michigan law expressly authorizes the release of a public school student for involvement in released time religious instruction.[1] Michigan law permits participation in a released time program for up to two (2) class hours per week. Written permission of a parent or guardian is required.[2]
Furthermore, the United States Supreme Court upheld the constitutionally of released time classes over fifty years ago. [3] In approving of the released time program, the Supreme Court stated as follows:
“We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. 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 indifferent to religious groups.”
Moreover, the Supreme Court’s 1952 approval of released time classes is still being relied upon as valid. As recently as August of 2004, a high level federal court approved the same general framework for released time classes that was approved by the Supreme Court over fifty (50) years earlier.[4]
Allowing attendance at released time classes recognizes and reinforces the constitutional right of parents to direct the religious upbringing of their children—a right recognized by both the federal and Michigan courts.[5] In addition, a high level Federal Court commented as follows in approving of a religious released time program: “public school cooperation with the religious authorities in... the instant case is a largely passive and administratively wise response to a plenitude of parental assertions of the right to direct the upbringing and education of children under their control.” [6]
III. IS IT OPTIONAL OR MANDATORY FOR PUBLIC SCHOOLS TO RELEASE STUDENTS FOR RELEASED TIME RELIGIOUS INSTRUCTION?
If a student’s parent or guardian provides a written permission slip, it is mandatory, not optional, for public schools to release the students for released time religious instruction. Michigan regulations provide that: “The board of education or its duly authorized representative, upon written request of the parent, guardian or person having control or charge of any child or children, shall release from attendance at the public school any child or children to attend religious instruction classes not to exceed 2 hours (120 minutes) per week.” [7]
IV. MAY RELEASED TIME RELIGIOUS INSTRUCTION CLASSES BE ADVERTISED IN PUBLIC SCHOOL?
A. May a public school allow advertising for a released time program?
Yes. As recently as August of 2004, the Sixth Circuit U.S. Court of Appeals, whose decisions are binding on schools in Michigan, ruled that it does not violate the constitution for a public school to distribute materials from religious organizations to students on the same basis as other secular community groups.[8]) The court even stated that if a school “were to refuse to distribute flyers advertising religious activities while continuing to distribute flyers advertising other kinds of activities, students might conclude that the school disapproves of religion.”
B. If a public school allows distribution of advertising for non-religious community groups, can the school refuse to allow distribution of materials from religious community groups?
The answer is “No.” Numerous federal courts have clearly stated that if a public school hands out advertising fliers for private secular community groups, that school may not lawfully refuse to hand out fliers for religious organizations.[9]
It should also be noted that there is a State of Michigan regulation which states as follows:
“No solicitation for attendance at religious instruction classes shall be permitted on public school premises. The staff of the public school system shall neither encourage nor discourage participation in any religious instruction program”. [10]
However, because the regulation singles out religious materials for exclusion, it violates the federal constitution and is therefore unenforceable. Because federal constitutional requirements supersede state regulations, schools would be required to follow the dictates of the federal constitution rather than a conflicting state regulation. [11] The state regulation in question was adopted in 1964 and does not take into account recent case law which makes it unconstitutional and unenforceable. [12]
Given well publicized U.S. Supreme Court decisions in the 1960’s, school administrators are understandably reluctant to allow distribution of religious materials in public schools. However, in recent cases the U.S. Supreme Court has authorized far more advertising in public schools about religious events than most people realize. For example in 1990, the U.S. Supreme Court ruled that if a public high school allowed one non-religious student group to meet on school grounds, it was also required to allow a student religious group to meet as well and to enjoy the same advertising rights as non-religious student groups-including the right to advertise on school bulletin boards and on the school’s public address system.[13] As noted above, the Supreme Court’s decision in 1990 had been followed by numerous decisions allowing distribution of religious materials in public schools and prohibiting discriminatory exclusion of religious materials.[14]
V. DO STUDENTS RELEASED FOR RELEASED TIME CLASSES STILL COUNT FOR STATE ATTENDANCE PURPOSES?
Yes. Michigan Department of Education regulations provide for the public school release of students for released time instructions does not affect the availability of the school to count the released students for state aid purposes. Mich. Administrative Code 340.2(7)
VI. DOES THE STATE OF MICHIGAN HAVE OTHER REGULATIONS FOR RELEASED TIME CLASSES?
Yes. The Michigan Department of Education has adopted a number of regulations that specifically include the following rules:
1. The board of education or its duly authorized representative, upon written request of the parent, guardian or person having control or charge of any child or children, shall release from attendance at the public school any child or children to attend religious instruction classes not to exceed 2 hours (120 minutes) per week.
2. Each written request of the parent, guardian or person having control or charge of any child or children shall be made annually and shall specify the place at which religious instruction shall be given and the total amount of time per week during which release of the child or children from attendance at the public school is requested.
3. Persons or groups intending to hold or conduct religious instruction classes shall notify public school officials of their intent sufficiently in advance of the beginning of such class or classes so that public school officials can comply with the request for release of children from the public school for such purposes.
4. A record of attendance at religious instruction classes shall not be maintained by public school officials. Those persons or groups offering or conducting religious instruction classes shall keep records of attendance. The responsibility for attendance at religious instruction classes belongs to the parent, guardian or person having control or charge of any child or children.
Michigan Admin. Code R 340.71 to 340.74
(Note: A fifth regulation concerning solicitation for released time classes is addressed in Section IV above. As noted above in Section IV, this fifth regulation has been rendered unenforceable by numerous subsequent federal court decisions).
________________________________________
Footnotes
_____________________________________
[1] See MCLA 380.1561 (3)(d); see also Michigan Admin. Code R 340.71.
[2] Mich. Admin Code R 340.71
[3] See Zorach v Clauson, 343 US 306, 72 S. Ct. 679 (1952).
[4] See Pierce v Sullivan West Central School District, 379 F.3d 56, 61 (2d Cir, 2004).
[5] People v Dejonge, 442 Mich 266, 279, 289-90 (1993); Pierce v Society of Sisters, 268 US 510, 535 (1925); Wisconsin v Yoder, 406 U S 205, 214 (1972); see also Mich Compiled Laws 380.10 (“It is the natural, fundamental right of parents and legal guardians to determine and direct the care, teaching and education of their children.”)
[6] Michigan Admin Code R 340.71 (emphasis added).
[7] See Rusk v Crestview Local School District, 379 F.3d 418 (6th Cir., 2004); see also Daugherty v Vanguard Charter School Academy, 116 F. Supp 2d 897 (W.D. Mich, 2000).
[8] Rusk, 379 F.3d 418 (6th Cir, 2004).
[9] Hills v Scottsdale Unified School District, 329 F3d 1044 (9th Cir, 2003) cert den 124 S. Ct. 1146 (2004); Child Evangelism Fellowship of Maryland v. Montgomery County Public Schools, 373 F3d 589 (4th Cir, 2004).
Child Evangelism Fellowship of New Jersey, Inc. v Strafford Township School District, 386 F.3d 514 (3rd Cir, 2004).
[10] Michigan Admin. Code R 340.71.
[11] Cantwell v State of Connecticut, 310 US 296 (1940) (state law restricting dissemination of religious materials which was contrary to US Constitution was invalid).
[12] Hills v Scottsdale Unified School District, 329 F3d 1044 (9th Cir, 2003) cert den 124 S. Ct. 1146 (2004); Child Evangelism Fellowship of Maryland v. Montgomery County Public Schools, 373 F3d 589 (4th Cir, 2004).
Child Evangelism Fellowship of New Jersey, Inc. v Strafford Township School District, 386 F.3d 514 (3rd Cir, 2004).
[13] Bd. of Education v Mergens, 496 US 226 (1990)
[14] Hedges v Wauconda Community Unit School District, 9 F 3d 1295 (7th Cir, 1993); (total ban on student religious literature distribution at junior high school found unconstitutional); Westfield High School LIFE Club v City of Westfield, 249 F Supp 2d 98 (D. Mass, 2003) (ruling ban on student religious literature distribution outside of class was unlawful); Johnston-Loehner v O’Brien, 859 F Supp 575 (MD Fla, 1994); Nelson v Moline School Dist, 725 F Supp 965 (CD Illin, 1989); Clark v Dallas Independent School Dist, 806 F Supp (ND Tex, 1992); Slotterback v Interboro School Dist, 766 F Supp 280 (ED Pa, 1991) (upholding right of students to distribute religious tracts and striking down school policy banning materials that proselytized a particular belief).
Released Time Religious Instruction and the Law: Questions and Answers
printed by RBM Ministries Inc. Kalamazoo, MI 49009.
Phone: 269.342.9879
Email: [email protected]