State ex rel. Holt v. Thompson, S

Citation225 N.W.2d 678,66 Wis.2d 659
Decision Date05 February 1975
Docket NumberNo. S,S
PartiesSTATE ex rel. Mrs. Carol HOLT et al., Petitioners, v. Doctor Barbara THOMPSON, Superintendent of Public Instruction, Respondent. tate 160.
CourtUnited States State Supreme Court of Wisconsin

Manny S. Brown, Racine, for petitioners.

Robert G. Bramscher, Wisconsin Civil Liberties Union, Kenosha, amicus curiae.

Bronson C. La Follette, Atty. Gen., John William Calhoun, Asst. Atty. Gen., Madison, for respondent.

ROBERT W. HANSEN, Justice:

Does our state's released time for religious instruction statute 1 violate the establishment of religion clause in the first amendment to the federal constitution? 2 If it does not, does it violate the without due process of law provision in the fourteenth amendment? 3 If it does not, does it violate the freedom of worship section of our state constitution? 4 Three questions here asked, and three to be answered.

THE FIRST AMENDMENT.

In dealing with any claim that constitutional assurances of the first amendment are invaded by a state statute, we are bound by the results and interpretations given that amendment by the decisions of the United States Supreme Court. 5 There are numerous such decisions dealing with the establishment of religion and free exercise thereof clauses in the first amendment, 6 most of them involving the relationship between religion and education. 7 Review and application of these high court rulings have been facilitated by that court's dividing such cases into two separate and distinct catergories: (1) 'those dealing with religious activities within the public schools,' and (2) 'those involving public aid in varying forms to sectarian educational institutions.' 8 The footnotes and case citations accompanying this categorization clearly place released time for religious instruction statutes into the first category of cases, not the second. 9 As to released time statutes and their constitutional validity, the recent Nyquist decision cites and refers to two prior decisions, the McCollum Case 10 and the Zorach Case. 11

In McCollum, there was presented to the high court an Illinois 'released time' program under which the board of education permitted pupils to attend religious instruction classes conducted during regular school hours in the public school buildings by teachers furnished by an association of churches. In Zorach, four years later, the high court had before it a released time for public instruction plan in New York State under which, with written permission of the parents required, the religious classes were conducted elsewhere than in the public school buildings, with nonparticipating pupils remaining in the public school buildings. McCollum held the religion classes, conducted inside the public school buildings, to violate the establishment of religion clause in the first amendment. Zorach held the New York program, with the religious instruction conducted elsewhere than in the public school buildings, to be constitutionally valid. In Zorach, the high court made the distinction between the two cases, and the basis for it, crystal clear:

'This 'released time' program (the New York plan) involves neither religious instruction in public school classrooms nor the expenditure of public funds. All costs, including the application blanks, are paid by the religious organizations. The case is therefore unlike McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649, which involved a 'released time' program from Illinois. In that case the classrooms were turned over to religious instructors. We accordingly held that the program violated the First Amendment . . ..' 12

In the statutorily mandated plan before us, the classes for religious instruction are to be conducted elsewhere than in the public school buildings, so it is Zorach, not McCollum, that controls. In point of fact, the Wisconsin plan and procedure is very nearly an exact carbon copy of the New York State plan approved in Zorach. Under both programs, the public schools release students during the school day so that they may leave the school buildings and school grounds and go to religious centers for religious instruction. Under both programs, a student is released on written request or permission of his parents. Under both programs, those not released stay in the classrooms. Under both programs, the responsibility for attendance at the religion classes is on the religious organizations involved, with reports of attendance at the religious schools to be filed with the school authorities. Under the New York plan, such attendance reports were to be made weekly; in Wisconsin they are to be made monthly. Such reports, weekly or monthly, do not relate to the parents' permission or to the pupil's decision to go or forego going to the outside religious instruction classes. They are directed solely at not establishing a third option, to wit: electing to attend the outside classes and heading, instead, to the local pool hall. 13 Under both programs the time allotted is limited--under the New York plan to one hour per week; under the Wisconsin plan to at least 60 minutes, but not more than 180 minutes per week. The Wisconsin plan provides that the time period or periods allotted for the classes in religious instruction shall be determined by the school board. This insures orderly scheduling, and the same end is served by the provision, under both programs, that, where more than one religious school is conducted, the hour of release shall be the same for all religious schools. Under both programs, there is no expenditure of public funds involved other than the minor expense of filing attendance reports, a smaller item under the Wisconsin plan because such reports are monthly, not weekly as under the New York plan. Nor do we see any relatedness between released time for religious instruction and statutes providing for distribution of state funds to local school districts as state aids. 14 To conclude the comparing, we hold the Wisconsin plan or program, set forth in sec. 118.155, Stats., to be identical with the New York plan, promulgated by its state commissioner of education 15 and upheld as constitutionally antiseptic in Zorach.

With the fact situations essentially the same, and the interpretation there given the first amendment controlling, the doctrine of stare decisis requires that we here follow Zorach and find no constitutional invalidity, on first amendment grounds, in our state's released time for religious instruction statute. However, petitioners, and particularly an amicus curiae brief filed in this case, suggest that Zorach may no longer be good or controlling law, having been replaced by the three-pronged test of the Tilton Case. 16 That test, as stated in the subsequent Nyquist decision, holds that: '. . . to pass muster under the Establishment Clause the law in question, first, must reflect a clearly secular legislative purpose, . . . second, must have a primary effect that neither advances nor inhibits religion, . . . and, third, must avoid excessive government entanglement with religion . . ..' 17

There are at least three sound and solid reasons for rejecting the suggestion that the United States Supreme Court, in Tilton, sub silentio, withdrew or overruled Zorach without mentioning the fact that it was doing so. (1) Tilton itself rejects the idea of a 'single constitutional caliper' to be applied to all situations, and makes clear that any analysis in the field of first amendment challenges 'must begin with a consideration of the cumulative criteria developed over many years and applying to a wide range of governmental action.' 18 As to cases involving released time for religious instruction programs, McCollum and Zorach are the ones among the cumulative criteria that are applicable. (2) In 1973, two years after Tilton, the Nyquist decision repeats that any first amendment 'tests or criteria should be 'viewed as guidelines' within which to consider 'the comulative criteria developed over many years. '' 19 And Nyquist cites and refers to McCollum and Zorach, these being the only two cases cited as providing guidelines for released time for religious instruction cases. 20 The 1952 case of Zorach would hardly have been given such citation and attention in the 1973 Nyquist decision if it had, during the intervening years, been abandoned or overturned. (3) In Nyquist, the United States Supreme Court went further to place all of its religion-education precedents in two categories: the first, 'dealing with religious activities within the public schools,' and the second, 'involving public aid in varying forms to sectarian educational institutions.' 21 Zorach held that a released time program, nearly identical to the one now before us, '. . . involves neither religious instruction in public school classrooms nor the expenditure of public funds. . . .' 22 The Nyquist categorization reaffirms the Zorach conclusion that, where neither religious instruction in the public school classrooms nor the expenditure of public funds are involved, there is no conflict with the establishment of religion clause of the first amendment.

With Zorach holding that the exact type of released time program now before us is not subject to successful first amendment challenge, and that decision being here controlling, it is not necessary to take up, one by one, the three-pronged test, first stated in Tilton 23 and since restated in Nyquist. 24 However, for the sake of completeness only, we note that, in the light of Zorach, it is clear that no prong of the test pierces the constitutionality of the Wisconsin released time statute. (1) As to reflecting a clearly secular purpose, the first prong of the test, 25 Zorach held that the New York released time program, which parallels sec. 118.155, Stats., meant only that '. . . the public schools do no more than accommodate their schedules to a program of outside religious instruction. . . .' 26 Seeing...

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    ...provision. Wisconsin Health Facilities Authority v. Lindner, 91 Wis.2d 145, 280 N.W.2d 773 (1979); State ex rel. Holt v. Thompson, 66 Wis.2d 659, 225 N.W.2d 678 (1975); State ex rel. Warren v. Nusbaum, 55 Wis.2d 316, 198 N.W.2d 650 (1972); State ex rel. Warren v. Reuter, 44 Wis.2d 201, 170 ......
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    ...may be examined in terms of participation or in terms of money. In Weiss, it was based on both: participation In Holt v. Thompson, 66 Wis.2d 659, 225 N.W.2d 678 (1975), the Court examined a statute which provided for released time from public school instruction so that students could attend......
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    • United States State Supreme Court of Wisconsin
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    ...results and interpretations given that amendment by the decisions of the United States Supreme Court. See State ex rel. Holt v. Thompson, 66 Wis.2d 659, 663, 225 N.W.2d 678 (1975). "Ours [is] not to reason why; ours [is] but to review and apply." State ex rel. Warren v. Nusbaum, (Nusbaum I ......
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1 books & journal articles
  • Expression of Religion in Public Schools
    • United States
    • Colorado Bar Association Colorado Lawyer No. 40-11, November 2011
    • Invalid date
    ...the force of the public school was used to promote the program). See alsoSmith v. Smith, 523 F.2d 121 (4th Cir. 1975); Holt v. Thompson, 225 N.W.2d 678 (Wis. 1975). 169. Lanner v. Wimmer, 662 F.2d 1349 (10th Cir. 1981), citing Lemon, supra note 5. 170. Id. at 1353. 171. Id. at 1357. 172. Id......

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