Albany, N. Y (May. 11)
(Jewish Daily Bulletin)
School children in New York State may be dismissed early one day each week to receive religious instruction outside public school buildings.
The Free Thinkers’ Society yesterday lost its two-year fight against this practice when the Court of Appeals upheld the decision of the lower courts that it is within the power of the State Commissioner of Education to sanction it.
With minor variations, this arrangement has spread to some 130 cities and villages throughout the State, and sponsors of week-day religious education in both Catholic and Protestant churches have made it known that they were only awaiting a favorable decision from the Court of Appeals before seeking to establish the custom in New York.
The opinion, written by Judge Pound, dismisses the contention of the Free Thinkers that the White Plains plan, selected for the test, in reality violates the constitutional prohibition against denominational religious instruction in public schools. It dismisses also the view that the plan contravenes the provision of the Education Law requiring regular, full attendance of school children.
“The City of White Plains does not use public money to aid the church schools, although the cooperation between the public schools and the church schools requires a slight use of the time of the school teacher in registering and checking up excuses,” the opinion reads.
“A child otherwise in attendance may be excused for a portion of the entire time during which the schools are in session to the extent at least of half an hour in each week to take outside instruction in music or dancing without violating the provisions of the Compulsory Education Law, either in letter or in spirit. Practical instructions of the public schools call for some elasticity in this regard and vests some discretion in the school authorities. Neither the Constitution nor the law discriminates against religion. Denominational religion is merely put in its proper place outside of public aid or support. As a matter of educational policy, the Commissioner, doubtless, may make proper regulations to restrict the local authorties when the administration of the plan of week day instruction in religion or any plan of outside instruction in lay subjects in his judgment interferes unduly with the regular work of the school.
“The separation of the public school system from religious denominational instruction is thus complete. Jealous secretaries may view with alarm the introduction in the eschools of religious teaching which to the unobservant eye is but feebly tinted with denominationalism. Eternal vigilance is the price of constitutional rights, but it is impossible to say, as matter of law, that the slightest infringement of constitutional right or abuse of statutory requirement has been shown in this case.”
The Court of Appeals had had the case under consideration one week. Chief Judge Cardozo gave warning that the Court might decide that the case was not legally before it. Attorneys for the Free Thinkers admitted that they had not obtained permission from the Appellate Division, which ruled unanimously against them, but argued that, as a constitutional question was at stake, they had the right to a hearing before the highest court. Their view was accepted by the Court, which made its decision upon the merits of the case.
The White Plains case disposed of, there still remains an injunction against the Mount Vernon Bord of Education, issued by Supreme Court Justice Seeger in 1925 at the behest of the Free Thinkers. The plan there was generally similar to that in White Plains, but there were differences, which Joseph Lewis indicated might offer the opportunity for an other line of attack by the Free Thinkers. It was only a possibility, he said, which could not be weighed until his attorneys had considered carefully the Court of Appeals decision.