Illinois ex rel. McCollum v. Board of Education

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333 U.S. 203 (1948), argued 8 Dec. 1947, decided 8 Mar. 1948 by vote of 8 to 1; Black for the Court, Reed in dissent. McCollum v. Board of Education was one of the Supreme Court's early examinations of the part of the First Amendment that forbids establishment of religion. The Court decided that public schools could not allow religious teachers to offer religious instruction within school buildings. The tenor of the majority and concurring opinions was strictly separationist, suggesting a high wall between the state and religious activities.

The Illinois school board allowed students to receive religious instruction, Protestant, Catholic, or Jewish, for thirty or forty-five minutes in each school week. The instructors received no public funds but were subject to approval by the superintendent of schools. Students whose parents did not request religious instruction went elsewhere in the building; those enrolled for religious instruction were required to attend.

Justice Hugo Black, whose opinion for the Court in Everson v. Board of Education (1947) had applied the Establishment Clause against state agencies and endorsed broadly separationist guidelines, wrote for the Court again in McCollum. His opinion treated the school district's program as a plainly impermissible public aid to religion. A concurring opinion by Justice Felix Frankfurter, joined by four other justices, emphasized a historical trend against commingling sectarian and secular instruction in public schools and noted that almost two million students were in “released time” programs of one kind or another. Justice Reed's dissent argued that the Establishment Clause should be interpreted more narrowly to permit such incidental assistance to religion by the state. McCollum's practical impact on “released time” programs was sharply circumscribed by the Court's next case on the subject, Zorach v. Clauson (1952).

Over the next three decades, however, the Court permitted more opportunities for states to provide aid to religion. In the landmark case of Agostini v. Felton (1997), the justices overturned their previous decision in Aguilar v. Felton (1985) and held that they would no longer presume that public employees will inculcate religion simply because they happen to be in a sectarian environment. Thus the decision in Agostini may well have created a more conducive environment for such programs as school vouchers.

Kent Greenawalt

Subjects: Law.

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