People ex rel. Latimer v. Bd. of Educ. of City of Chicago

• Decision Date: 12 September 1946
• Docket Number: No. 29446.,29446.
• Citation: 68 N.E.2d 305,394 Ill. 228
• Parties: PEOPLE ex rel. LATIMER et al. v. BOARD OF EDUCATION OF CITY OF CHICAGO.
• Court: Illinois Supreme Court

394 Ill. 228

68 N.E.2d 305

PEOPLE ex rel. LATIMER et al.

v.BOARD OF EDUCATION OF CITY OF CHICAGO.

No. 29446.

Supreme Court of Illinois.

May 21, 1946.

As Modified on Denial of Rehearing Sept. 12, 1946.

Appeal from Superior Court, Cook County; Ulysses S. Schwartz, judge.

Mandamus proceeding by the People, on the relation of Ira Latimer and another, against the Board of Education of the City of Chicago to compel the board of education to immediately revoke the action of the board authorizing Superintendent of Schools to excuse public school children at request of their parents for one hour each week before end of regular school period for purpose of attending religious educational classes at places outside of the school activities or property, and to compel the board to make and enforce rules prohibiting excuse of pupils from public schools to attend classes for instruction in religion or in aid of any church or sectarian purpose. From an adverse judgment, petitioners appeal.

Affirmed.

Landon L. Chapman, of Chicago, for appellants.

Richard S. Folsom, of Chicago (Frank S. Righeimer and Frank R. Schneberger, both of Chicago, of counsel), for appellees.

FULTON, Justice.

The petitioners, in the superior court of Cook county, sued for a writ of mandamus, seeking to compel the Board of Education of the City of Chicago to immediately revoke, cancel and repeal the action of the said board under date of August 16, 1929, authorizing the superintendent of schools to excuse public-school children at the request of their parents for one hour each week before the end of the regular school period, for the purpose of attending religious educational classes at places outside of the school activities or property. The petitioners also seek to compel the said board to make and enforce rules prohibiting the excuse of pupils from the public schools to attend classes for instruction in religion, or in aid of any church or sectarian purpose.

The board of education, appellee here, filed a motion to strike and dismiss an amended petition for mandamus, which, after hearing, was granted and the cause dismissed. From that ruling and order of the superior court, the petitioners prosecute a direct appeal to this court because a construction of both our State and the Federal constitutions is involved.

The interest alleged by the petitioners in bringing this suit is that the petitioner Ira Latimer is a citizen and resident of the city of Chicago and is particularly interested in the enforcement of laws relating to civil rights and liberties. He states that he has frequently engaged in activities opposing union of church and state in the public schools. He is the father of two children residing with him, one of whom he plans to enroll in the public schools of Chicago within the next three years. Fred Ptashne, the other petitioner, is similarly situated and in addition asserts that he is a taxpayer.

The petition fully sets forth the organization and powers of the Board of Education of the City of Chicago and its control and management of the public elementary schools of that city, together with the large number of teachers employed and the approximate number of pupils. It further recites the enormous sums expended from taxes and the financial aid received by the board from the United States government.

The particular official action of the board of education, about which the relators complain, was a regulation adopted on August 16, 1929, reading as follows:

‘Proceedings of Board of Education, City of Chicago, August 16, 1929.

‘The Superintendent of schools recommends that upon the written request of parents, the Superintendent be authorized to excuse pupils in sixth and seventh grade classes one hour a week to attend classes for instruction in religion. Reasons: A group of citizens and patrons of the public schools in the Lake View Community have petitioned for the release of their children for religious instruction in nearby churches. This follows the precedent of releasing children to attend Confirmation Classes in accordance with the State Law.

‘Financial: No cost.’

It is alleged that pursuant to such regulation the appellee, through its superintendent, teachers and other assistants, has for sixteen years released pupils from school during regular school sessions for one hour on condition that they attend a class in religious instruction and thereafter return to the public-school room.

It appears from the petition that out of 249,614 public elementary school pupils, 22,500 are excused for one hour per week, usually the last hour of the school day on Wednesday. It is claimed that the superintendents and principals are required to issue directions concerning the dismissal of pupils for the purpose outlined and that the superintendent uses postage, stenographic service, stationery, telephones and office space for such service; that the principals of the schools engage in conferences with the teachers of religion and with the agents of the churches concerning the details of the plan; that such services constitute duties performed in the course of their employment for which they are paid from the public-school fund.

Attached to the petition are exhibits prepared by ‘The Church Federation of Greater Chicago,’ announcing their program for religious instruction, together with a formal blank entitled ‘Parents Request Card,’ which, when filled out and signed, expresses the desire of the parents that their child be permitted to be enrolled in the weekday church school and the particular church or denomination in which the child is to receive instruction.

It is the contention of the petitioners that the action of the appellee above outlined violates the American principle of separating church and state. Particularly they say it is a violation of the first amendment to the constitution of the United States which provides that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’ Also that it violates the fourteenth amendment of the same constitution providing that no State shall make or enforce any law which deprives any person of life, liberty or property without due process of law, nor which denies to any person within its jurisdiction the equal protection of the laws. It is further claimed that such action violates a similar section of the Illinois constitution, being section 2 of article II, Smith-Hurd Stats. Petitioners further charge a violation of sections 1 and 3 of article VIII of the constitution of Illinois which require the General Assembly to provide a thorough and efficient system of free schools and that no public corporation shall make any appropriation or pay from any public fund whatever anything in aid of any church or sectarian purpose. In further support of their contention petitioners rely on ...