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Author:Leo Pfeffer

Twice, in MCCOLLUM V. BOARD OF EDUCATION (1948) and again in ZORACH V. CLAUSEN (1952), the Supreme Court considered FIRST AMENDMENT challenges to the practice of releasing public school pupils from their regular studies so that they might participate in programs for religious instruction.

The first such program, in Gary, Indiana, in 1914, provided that, with parental consent and cooperation of church authorities, children could be released for one or more periods each week to go to churches of their own faith and there participate in religious instruction, returning to the public school at the end of the period, or if the period was the last of the day, going home.

The idea spread to other communities, but, for a variety of reasons, quite slowly. In rural and small urban communities, such as Champaign, Illinois, it was found more effective to have the religious instruction take place within the public schools rather than in the church schools.

In Champaign in 1940, an interfaith council with Protestant, Roman Catholic, and Jewish representatives was formed to offer religious instruction within the public schools during regular school hours. Instructors of religion were to be hired and paid by or through the interfaith council, subject to the approval and supervision of the public school superintendent. Each term the public school teachers distributed to the children cards on which parents could indicate their consent to the enrollment of their children in the religion classes. Children who obtained such consent were released by the school authorities from the secular work for a period of thirty minutes weekly in the elementary schools and forty-five minutes in the junior high school. Only Protestant instruction was conducted within the regular classroom; children released for Roman Catholic or Jewish instruction left their classroom for other parts of the building. Nonparticipants were also relocated, sometimes accompanied by their regular teachers and sometimes not. At the end of each session, children who had participated in any religious instruction returned to the regular classroom, and regular class work was resumed.

McCollum v. Board of Education (1948) was a suit, brought in a state court by the mother of a fifth grader, challenging the constitutionality of Champaign's program. In the Supreme Court, counsel for the school authorities argued that the establishment clause did not apply to the states, and that the contrary HOLDING in EVERSON V. BOARD OF...

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