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FRANKFURTER, J., dissenting.

343 U.S.

hand of government. Statutes authorizing such repression have been stricken. Before today, our judicial opinions have refrained from drawing invidious distinctions between those who believe in no religion and those who do believe. The First Amendment has lost much if the religious follower and the atheist are no longer to be judicially regarded as entitled to equal justice under law.

State help to religion injects political and party prejudices into a holy field. It too often substitutes force for prayer, hate for love, and persecution for persuasion. Government should not be allowed, under cover of the soft euphemism of “co-operation," to steal into the sacred area of religious choice.

MR. JUSTICE FRANKFURTER, dissenting.

By way of emphasizing my agreement with MR. JUSTICE JACKSON's dissent, I add a few words.

The Court tells us that in the maintenance of its public schools, “[The State government] can close its doors or suspend its operations" so that its citizens may be free for religious devotions or instruction. If that were the issue, it would not rise to the dignity of a constitutional controversy. Of course, a State may provide that the classes in its schools shall be dismissed, for any reason, or no reason, on fixed days, or for special occasions. The essence of this case is that the school system did not "close its doors” and did not "suspend its operations.” There is all the difference in the world between letting the children out of school and letting some of them out of school into religious classes. If every one is free to make what use he will of time wholly unconnected from schooling required by law—those who wish sectarian instruction devoting it to that purpose, those who have ethical instruction at home, to that, those who study music, to that, then of course there is no conflict with the Fourteenth Amendment.

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FRANKFURTER, J., dissenting.

The pith of the case is that formalized religious instruction is substituted for other school activity which those who do not participate in the released-time program are compelled to attend. The school system is very much in operation during this kind of released time. If its doors are closed, they are closed upon those students who do not attend the religious instruction, in order to keep them within the school. That is the very thing which raises the constitutional issue. It is not met by disregarding it. Failure to discuss this issue does not take it out of the

case.

Again, the Court relies upon the absence from the record of evidence of coercion in the operation of the system. "If in fact coercion were used,” according to the Court, “if it were established that any one or more teachers were using their office to persuade or force students to take the religious instruction, a wholly different case would be presented.” Thus, “coercion” in the abstract is acknowledged to be fatal. But the Court disregards the fact that as the case comes to us, there could be no proof of coercion, for the appellants were not allowed to make proof of it. Appellants alleged that “The operation of the released time program has resulted and inevitably results in the exercise of pressure and coercion upon parents and children to secure attendance by the children for religious instruction.” This allegation—that coercion was in fact present and is inherent in the system, no matter what disavowals might be made in the operating regulationswas denied by appellees. Thus were drawn issues of fact which cannot be determined, on any conceivable view of judicial notice, by judges out of their own knowledge or experience. Appellants sought an opportunity to adduce evidence in support of these allegations at an appropriate trial. And though the courts below cited the concurring opinion in McCollum v. Board of Education, 333 U. S. 203, 226, to “emphasize the importance of de

FRANKFURTER, J., dissenting.

343 U.S.

tailed analysis of the facts to which the Constitutional test of Separation is to be applied,” they denied that opportunity on the ground that such proof was irrelevant to the issue of constitutionality. See 198 Misc. 631, 641, 99 N. Y. S. 2d 339, 348–349; 303 N. Y. 161, 174–175, 100 N. E. 2d 463, 469.

When constitutional issues turn on facts, it is a strange procedure indeed not to permit the facts to be established. When such is the case, there are weighty considerations for us to require the State court to make its determination only after a thorough canvass of all the circumstances and not to bar them from consideration. Cf. Chastleton Corp. v. Sinclair, 264 U. S. 543; Hammond v. Schappi Bus Line, 275 U. S. 164. If we are to decide this case on the present record, however, a strict adherence to the usage of courts in ruling on the sufficiency of pleadings would require us to take as admitted the facts pleaded in the appellants’ complaint, including the fact of coercion, actual and inherent. See Judge Fuld, dissenting below, 303 N. Y., at 185, 100 N. E. 2d, at 475. Even on a more latitudinarian view, I cannot see how a finding that coercion was absent, deemed critical by this Court in sustaining the practice, can be made here, when appellants were prevented from making a timely showing of coercion because the courts below thought it irrelevant.

The result in the McCollum case, 333 U. S. 203, was based on principles that received unanimous acceptance by this Court, barring only a single vote. I agree with MR. JUSTICE Black that those principles are disregarded

1 Issues that raise federal claims cannot be foreclosed by the State court treating the allegations as "conclusory in character." 303 N. Y. 161, 174, 100 N. E. 2d 463, 469. This is so even when a federal statute is involved. Brown v. Western R. of Alabama, 338 U. S. 294. A fortiori when the appeal is to the Constitution of the United States.

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JACKSON, J., dissenting.

in reaching the result in this case. Happily they are not disavowed by the Court. From this I draw the hope that in future variations of the problem which are bound to come here, these principles may again be honored in the observance.

The deeply divisive controversy aroused by the attempts to secure public school pupils for sectarian instruction would promptly end if the advocates of such instruction were content to have the school "close its doors or suspend its operations”—that is, dismiss classes in their entirety, without discrimination-instead of seeking to use the public schools as the instrument for securing attendance at denominational classes. The unwillingness of the promoters of this movement to dispense with such use of the public schools betrays a surprising want of confidence in the inherent power of the various faiths to draw children to outside sectarian classes-an attitude that hardly reflects the faith of the greatest religious spirits.

MR. JUSTICE JACKSON, dissenting.

This released time program is founded upon a use of the State's power of coercion, which, for me, determines its unconstitutionality. Stripped to its essentials, the plan has two stages: first, that the State compel each student to yield a large part of his time for public secu

2 The reservation made by four of the Justices in the McCollum case did not, of course, refer to the New York situation any more than it referred to that form of “released time" under which the whole student body is dismissed. This was the reservation:

"We do not consider, as indeed we could not, school programs not before us which, though colloquially characterized as 'released time, present situations differing in aspects that may well be constitutionally crucial. Different forms which ‘released time' has taken during more than thirty years of growth include programs which, like that before us, could not withstand the test of the Constitution; others may be found unexceptionable." 333 U. S., at 231.

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JACKSON, J., dissenting.

343 U.S.

lar education; and, second, that some of it be “released" to him on condition that he devote it to sectarian religious purposes.

No one suggests that the Constitution would permit the State directly to require this “released” time to be spent "under the control of a duly constituted religious body.” This program accomplishes that forbidden result by indirection. If public education were taking so much of the pupils' time as to injure the public or the students' welfare by encroaching upon their religious opportunity, simply shortening everyone's school day would facilitate voluntary and optional attendance at Church classes. But that suggestion is rejected upon the ground that if they are made free many students will not go to the Church. Hence, they must be deprived of freedom for this period, with Church attendance put to them as one of the two permissible ways of using it.

The greater effectiveness of this system over voluntary attendance after school hours is due to the truant officer who, if the youngster fails to go to the Church school, dogs him back to the public schoolroom. Here schooling is more or less suspended during the “released time” so the nonreligious attendants will not forge ahead of the churchgoing absentees. But it serves as a temporary jail for a pupil who will not go to Church. It takes more subtlety of mind than I possess to deny that this is governmental constraint in support of religion. It is as unconstitutional, in my view, when exerted by indirection as when exercised forthrightly.

As one whose children, as a matter of free choice, have been sent to privately supported Church schools, I may challenge the Court's suggestion that opposition to this plan can only be antireligious, atheistic, or agnostic. My evangelistic brethren confuse an objection to compulsion with an objection to religion. It is possible to hold a faith with enough confidence to believe that what should be

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