Albany (Apr. 26)
(Jewish Daily Bulletin)
The right of Boards of Education to permit release of school pupils for certain periods each week for religious education in churches selected by their parents, was upheld Saturday by Supreme Court Justice Ellis J. Staley.
In denying a mandamus which Joseph Lewis, President of the Free Thinkers Society, had sought against the Commissioner of Education to compel the latter to force discontinuance of the practice in the schools of White Plains and in many other cities of the State whose school boards are cooperating in giving religious instruction, the Justice held that not only had he no right to issue such a mandamus but the local educational authorities were clearly within their authority.
The Free Thinkers Society has announced its intention of carrying the matter to the Court of Appeals and perhaps the United States Supreme Court.
After quoting an opinion of the United States Supreme Court in the Oregon state law case, that “the child is not the mere creature of the State” and that “those who nurture him and direct his destiny have the right, coupled with the high duty, to prepare him for additional obligations, the Justice stated.
“The Board of White Plains, or any school board, and the Commissioner, in their exercise of discretion in the determination that a rule which accedes to the request of parents to excuse their children thirty minutes a week for religious instruction constitutes an absence not amounting to irregular attendance in the fair meaning of the term, may properly give consideration for their guidance and sound judgment to the utterance of the United States Supreme Court above referred to and to the appealing weight of the following propositions:
“That the right of the parent to direct the training and nurture of the child is a fundamental right;
“That the obligations of citizenship require the promotion of a spirit of patriotic and civic service and the fostering in children of moral as well as intellectual qualities;
“That religious conscience, conviction and accountability are the least dispensable foundations for good citizenship and real patriotism;
“That moral growth and intellectual growth go hand in hand to make the essential elements of character and good citizenship;
“That the right of the State to enforce school attendance does not mean that the mental and moral development of all children must be limited to a common mould and that all children must be standardized;
“That the regulation does not create a union between church and States, or teach any sectarianism in the schools or invade the religious freedom or conscience of any individual.”
“I hold that the excusing of children at the request of their parents for the period and purpose stated by a general regulation of the Board of Education of White Plains, was an act within the power of said board in the exercise of its judgment and discretion; that the determination of the board that such regulation comes within the provision permitting occasional absences, not amounting to irregular attendance within the fair meaning of the term, was not an abuse of its discretion in that regard; that the regulation was made in accordance with and not inviolation of law; that the Commissioner in the exercise of his powers and in the discharge of his duties has no clear right or positive duty to act contrary in the premises, and that a discretionary power having been lawfully exercised, a mandamus order cannot issue to revoke or annul the action taken.”
The Justice pointed out that in the City of White Plains the arrangement by which children attend their churches during the ordinary school hours is entirely voluntary and that churches of all denominations, including Catholic, Protestant and Jewish are participating in affording the means for instruction. After quoting from the provision of the educational law, showing that local educational boards have the power to prescribe necessary regulations for all social, educational or recreational activities under its charge, he continued:
“The hour of opening and closing the schools is not fixed by law, but is subject to regulation by the Board of Education which is directed to maintain school sessions for at least 180 days. The petitioner asserts that the mandate of the statute requiring attendance upon instruction for the entire time during which the school shall be in session, is absolute.”