Albany (May. 4)
(Jewish Daily Bulletin)
The question of whether boards of education have the right to dismiss public school pupils for a certain period each week during school hours for attendance on religious instruction in other than school buildings reached the highest court of the state yesterday on appeal. However, Chief Judge Cardozo of the Court of Appeals raised the question as to whether the appeal was properly before the court, and although hearing the beginning of the arguments reserved decision on this point.
Joseph Lewis, who is president of the Free Thinkers Society, sought an order against Dr. Frank P. Graves, state Commissioner of Education, to compel him to prevent the school authorities of White Plains from continuing to excuse pupils for such religious instruction a half-hour each week. The lower courts decided in favor of the school authorities, and the Appellate Division of the Supreme Court unanimously held that such procedure was within the rights of the school officials.
John C. Mahon, representing Mr. Lewis, appeared before the Court of Appeals to represent the appellants. Hardly had he begun his argument before Judge Cardozo interrupted to ask him what authority he had to appear before the court on an appeal from a unanimous decision of the Appellate Division. Such an appeal may be made only with the consent of the Appeallate Division.
Mr. Mahon replied that he had no authority except his constitutional right. Judge Cardozo then remarked that the court would hear his argument, but would reserve decision as to whether to accept the presentation of the appeal. Mr. Mahon, therefore, faces the possibility of being “thrown out of court”, when he continues his arguments tomorrow.
Ernest-E. Cole, of the State Department of Education, appeared for Commissioner Graves. Mr. Mahon declared that the White Plains ruling was an illegal regulation, violative of the compulsory education law and various other principles. He declared that it is the duty of the Commissioner of Education to enforce the law and he is given no discretion in this matter.
Public school teachers, he held, are being compensated by public moneys, and held that in the White Plains case public moneys are therefore being used to further sectarian religious instruction and public property is being misappropriated. In Mount Vernon, he pointed out, a public printing press was used to print cards for the children attending such religious instruction.
Mr. Cole contended that absences for one hour or less one day a week to attend upon outside religious instruction do not constitute irregular attendance. He pointed out the “children of a particular religious faith are excused commonly to attend, upon certain days, religious festivals and observances. Such absences are deemed occasional absences not amounting to